Employers Are Not Required to Accommodate Employees’ Requests for Shorter Workday Where Overtime Is an Essential Function of the Job, Eighth Circuit Holds

An employer may refuse to accommodate a request for reduced hours from an employee with a disability where overtime is an essential function of the job, the Eighth Circuit Court of Appeals recently held. 

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Colorado Legislature Kills Paid Medical Leave and Local Minimum Wage Bills Before Close of Session

Two bills with potentially wide-reaching effects on Colorado employers did not survive the recently-closed legislative session.

 

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California Independent Contractors May Become Employees Under the “ABC Test”

This week, the California Supreme Court made it more difficult for many employers to lawfully classify workers as independent contractors under California wage-and-hour law.

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Arbitration Agreements Under Fire in the #MeToo Era

In the wake of the #MeToo environment, legislators in several states and in Congress have taken aim at arbitration agreements as they apply to claims of sexual harassment in the workplace.  Additionally, all 56 attorneys general recently sent a letter to Congress asking it to prevent employers from requiring that sexual harassment claims be resolved through arbitration.

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Workplace Policy Prohibiting Salary Discussions Deemed Unlawful

A National Labor Relations Board (“NLRB”) administrative law judge (“ALJ”) held that an employer’s “confidential information” rule prohibited employees from discussing wages, and therefore violated Section 7 of the National Labor Relations Act (“NLRA”). 

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Ninth Circuit Holds That Prior Salary Cannot Justify Wage Gaps Between Women and Men

The Ninth Circuit Court of Appeals ruled this week that employers may not justify pay differences between women and men by relying on prior salary. The Rizo v. Yovino decision concerned the Equal Pay Act, which prohibits employers from paying male and female employees different wages for substantially equal work, unless the wage difference is the result of (1) a seniority system; (2) a merit system; (3) a system that measures earnings by quantity or quality; or (4) a differential based on “any factor other than sex.”

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High Court Rejects “Narrow Construction” Principle for FLSA Exemptions

This week, the United States Supreme Court issued a much-anticipated decision regarding whether service advisors working at a car dealership were exempt from the overtime pay requirements of the Fair Labor Standards Act (“FLSA”).  In a 5-4 decision, the Court in Encino Motorcars, LLC v. Navarro ruled that service advisors are exempt from overtime pay requirements under the “salesman, partsman, or mechanic” exemption to the FLSA, and thus rejected the Department of Labor’s Obama-era interpretation of that exemption.  In making this decision, the Court rejected the long-standing “narrow construction” principle that the FLSA’s exemptions should be interpreted narrowly, ruling instead that such exemptions should be given a “fair reading.”

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Accurate Performance Reviews-Based upon Current Performance-Prevail

Pervez Rashid, a Muslim of Pakistani descent and manager of Washington Metropolitan Area Transit Authority (“WMATA”), received satisfactory performance reviews under a prior manager.  Rashid received a new manager, his job title and duties changed and his performance decreased, resulting in WMATA firing him.  Rashid sued for religious discrimination, but lost because, although he satisfactorily performed under the prior manager (an argument Rashid made), “when a district court evaluates the question of whether an employee was meeting an employer’s legitimate employment expectations, the issue is not the employee’s past performance but whether the employee was performing well at the time of [his] termination.”  

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Tenth Circuit Holds That Employees Need Not Allege Specific Facts of Willfulness to Assert Older Wage Claims Under the Fair Labor Standards Act

This month, the Tenth Circuit Court of Appeals (which hears appeals from federal courts in Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming) reinstated wage claims of two house cleaners under the Fair Labor Standards Act (“FLSA”), and rejected the argument that such claims were time-barred because they were more than two years old.

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Colorado Wage Claims Limited to Two-year’s Back Pay (or up to three years for willful violations)

The Colorado Supreme Court has ruled that the Colorado Wage Act’s (the “Wage Act”) two- and three-year statutes of limitations do apply to claims brought by employees to recover unpaid wages and compensation upon termination. In Hernandez v. Ray Domenico Farms, Inc., several hourly agricultural workers sued their former employer for allegedly unpaid wages going back over the entire period of their employment (which in some cases spanned more than 20 years). The Supreme Court held as follows:

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NLRB Changes Course on Joint Employment Test—at Least Temporarily

 We recently reported that the National Labor Relations Board (“NLRB”), in its Hy-Brand Industrial Contractors decision, had restored the “traditional test” for determining whether two or more businesses are joint employers (whereby two or more entities will be deemed joint employers where one entity actually exercised control over another entity’s employees) and rejected the Obama-era Browning-Ferris decision (in which a business can be deemed a joint employer if it merely had indirect or potential control over another entity’s employees, even if it never exercised such control).  In the past two weeks, the NLRB has (1) vacated its Hy-Brand decision on procedural grounds; and (2) asked the U.S. Court of Appeals for the District of Columbia Circuit to continue its review of the Browning-Ferris decision, which was pending before that court at the time the NLRB issued its decision in Hy-Brand.

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Another Circuit Court Finds that Sexual Orientation Discrimination is Sex Discrimination

This week, the Second Circuit Court of Appeals, which hears appeals from federal courts in Connecticut, New York, and Vermont, held that discrimination based on sexual orientation violates Title VII of the Civil Rights Act of 1964 (“Title VII”).

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Tenth Circuit Will Not Presume Irreparable Harm in Trade Secret Cases

Companies seeking to protect trade secrets from former employees’ misappropriation will have to show evidence of irreparable harm in order to obtain a preliminary injunction, based on a Tenth Circuit decision disallowing courts from presuming such harm simply because the company brings claims under the Defend Trade Secrets Act (the “DTSA”) or the Colorado Uniform Trade Secrets Act (the “CUTSA”). The First Western Capital Management Co. v. Malamed decision marks a significant change from previous Tenth Circuit law, and practically makes it harder for a party to get a preliminary injunction in trade secret misappropriation lawsuits.

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The “#MeToo” Impact on Sexual Harassment Claims

In the #MeToo era, consequences of harassment allegations are far-reaching and often take effect without the filing of a lawsuit. Last week Steve Wynn, CEO of Wynn Resorts, stepped down after allegations of sexual misconduct put pressure on his ability to remain in his former position and shares of Wynn Resorts stock plummeted nearly 20%.

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Court Finds Authorized Access of Information on Work Computer for Unauthorized Use Not a Violation of the CFAA

Last month, a federal district court in Pennsylvania held that an employee cannot be held liable under the Computer Fraud and Abuse Act (CFAA) for misusing information because she was authorized to access it in the first place. A description of the CFAA, the Teva Pharmaceuticals case, and practical takeaways follows.

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Overview of Newly-Proposed Colorado Employment Laws

In January, Colorado lawmakers convened for the 2018 state legislative session. Below is a summary of three noteworthy proposed bills that would impact Colorado employers.

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Federal Court Vacates EEOC Wellness Program Rules, Giving Employers Until January 1, 2019 to Update Programs

A federal court has vacated the Equal Employment Opportunity Commission’s (“EEOC”) rules that allow employers to provide incentives of up to 30% of the cost of an employee’s health insurance premiums for employee participation in wellness programs. The effective date of the ruling is January 1, 2019, which gives employers just under a year to ensure compliance.

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New DOL Test Gives Private Employers More Flexibility to Hire Unpaid Interns

On January 5, 2018, the U.S. Department of Labor (DOL) adopted a new test for determining when interns are employees who must be paid in accordance with the Fair Labor Standards Act (FLSA). Although federal courts over the last several years had rejected the Obama administration’s rigid and mandatory six-prong test for whether someone can by properly classified as an unpaid intern under the FLSA, the DOL has now formerly adopted a more flexible primary beneficiary/economic reality test.

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Tax Bill Bars Companies From Deducting Payments in Sex Harassment Settlements Where Agreement Is Subject to a Nondisclosure Agreement

The Tax Cuts and Jobs Act of 2017 (the “Tax Bill”), which President Trump signed into law on December 22, 2017, eliminates companies’ ability to deduct settlement payments in sexual harassment cases, where such payments are subject to non-disclosure clauses (“NDAs”). Under the extremely broad provision, “No deduction shall be allowed” for “(1) any settlement or provision related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement, or (2) attorney’s fees related to such a settlement or payment.” The prohibition applies to amounts “paid or incurred” after December 22, 2017, meaning that companies currently negotiating sexual harassment claims are affected.

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DOL Proposed Regulation Allows Tip-Sharing with Non-Tipped Employees

The United States Department of Labor (“DOL”) has proposed new regulations which would allow employers who do not take a tip credit to open tip pools to non-tipped employees.  Employers use tip credits to pay the tipped minimum wage (an amount lower than federal or state minimum wage) and rely upon the tips employees receive to cover the difference between the employees’ tipped minimum wage and the state or federal minimum wage.  Under current federal law, employers can require tipped employees to pool or share tips only among employees who regularly and customarily receive tips (i.e., servers, bartenders, and bussers).  At the federal level, the current restriction applies regardless of whether the employer claims a tip credit.  The DOL proposal would still prevent employers who use tip credits from pooling tips with non-tipped employees. 

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