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Labor and Employment Law Updates

Task Force Begins Analysis of Colorado Paid Family and Medical Leave Program

A thirteen-member task force appointed by Colorado’s Governor and legislative leaders has begun efforts to study the implementation of a paid family and medical leave program in Colorado. Stacey Campbell of Campbell Litigation sits on the Family and Medical Leave Task Force and will serve as Vice-Chair.

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NLRB Gives Employers More Freedom to Remove Unions at End of Contract

Employers who have evidence that a majority of their workers no longer support their union now have greater leeway to suspend bargaining and withdraw recognition of the union after a collective bargaining agreement (“CBA”) expires, under a recent National Labor Relations Board (“NLRB”) decision.

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Arbitration Agreements Must Not Restrict Employees’ Access to the NLRB

Broad arbitration agreements that cover “all claims or controversies” and do not explicitly carve out the right of employees to file charges with the National Labor Relations Board (“NLRB”) may be unlawful, under a recent NLRB decision.

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New Marijuana Legislation Impacts Employer’s Rights

Starting January 1, 2020, employers in Nevada may not reject a job applicant who tests positive for cannabis on a pre-employment drug screening. Under the recently passed Nevada law, if an employer requires an employee to submit to a drug screening within the first thirty (30) days of employment, the employee has the right to take a second test, at his or her own expense, to contest the results of the initial screening.

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Extreme Obesity Not Caused by an Underlying Medical Condition Is Not a Disability Under Federal Anti-Discrimination Law

Extreme obesity cannot support a disability discrimination claim under the Americans With Disabilities Act (ADA) without evidence that the condition was caused by a physiological disorder or condition, the Seventh Circuit Court of Appeals has ruled.

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Supreme Court Holds Employers May be Required to Litigate Non-Exhausted Discrimination Claims

The U.S. Supreme Court ruled unanimously that federal courts have the power to review discrimination and retaliation claims brought under Title VII of the 1964 Civil Rights Act (“Title VII”) even if the plaintiff did not first file a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") or an equivalent state agency.

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Colorado Employers Should Prepare Themselves for Wide Range of Equal Pay Obligations

Colorado’s “Equal Pay for Equal Work Act,” (the “Act”) prohibits discriminatory pay practices between men and women, but also greatly increases employers’ exposure to lawsuits and penalties for alleged pay violations, which, at times, may be explained by a variety of legitimate business reasons.

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Failure to Pay Wages is Now Criminal Theft in Colorado

Colorado Governor Jared Polis signed a law that classifies an employer’s failure to pay wages as “theft,” making it a criminal offense. Under the new law, which takes effect on January 1, 2020, any employer who willfully refuses to pay wages, or intentionally and falsely denies the amount or validity of a wage claim, commits criminal theft….

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Uber Drivers Are Deemed Independent Contractors by NLRB General Counsel

The National Labor Relations Board’s (“NLRB”) general counsel has concluded that Uber drivers are independent contractors, not employees, and thus are excluded from federal labor laws giving employees protections to engage in concerted protected activities and to form or join a union.

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“Ban the Box” Will Be Signed Into Law in Colorado

The Colorado legislature has passed “Ban the Box” legislation, which prohibits Colorado employers from (1) inquiring into a job applicant’s criminal history on an initial employment application, and (2) advertising or stating that individuals with criminal histories cannot apply for certain positions.

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Supreme Court Limits Class Action Arbitrations

Courts may not compel employers to arbitrate class actions—i.e., cases where several individuals collectively assert claims against their employer—unless the underlying arbitration agreement clearly authorizes class arbitrations, the Supreme Court recently held.

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Supreme Court to Consider Whether Federal Anti-Discrimination Law Protects Gay and Transgender Employees

The Supreme Court has decided to consider one of country’s biggest workplace law issues—whether Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits employment discrimination based on sexual orientation or gender identity.

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Denver Raises Minimum Wages for City Contractors

The Denver City Council has passed an ordinance that incrementally raises the minimum wage for workers employed by city contractors and subcontractors to $15 an hour by 2021. As described below, the ordinance covers a broad range of contractors and in some cases applies to contracts signed before the ordinance was passed.

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U.S. Department of Labor: FMLA Leave Must Run Concurrently with Paid Leave

The United States Department of Labor (“DOL”) has taken the position that an employer must designate any leave of absence that qualifies under the Family and Medical Leave Act (“FMLA”) as FMLA leave, even if an employee wants to first exhaust paid time off benefits.

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US Department of Labor Announces Proposed Rule Limiting Joint-Employer Liability

This week, the Department of Labor (“DOL”) issued a proposed rule to alter the standard for determining joint-employer status under the Fair Labor Standards Act (“FLSA”). The DOL proposes a straightforward, four-factor test that would consider whether the potential joint employer actually exercises the power to:

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Employers Given Space to Make Appropriate Business Judgments

A federal appeals court has held that a plaintiff claiming intentional workplace discrimination must prove her employer treated her worse than co-workers outside her protected class who were similar to her “in all material respects.”

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DOL Proposes Increased Salary Level for White-Collar Overtime Exemptions

The United States Department of Labor (“DOL”) plans to increase the salary threshold for so-called “white collar overtime exemptions,” from $455 per week ($23,660 per year) to $679 per week ($35,308 per year), and to increase the annual compensation requirement for a separate class of “highly compensated employees” from $100,000 to $147,414 per year.

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Lactation-Based Bias is Both Sex Discrimination and Harassment

A restaurant franchisee must pay $1.5 million to a female employee for denying her a private place to express breast milk, under a recent Delaware jury award.

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Colorado Employers Could Face Varying Minimum Wage Rates Under Proposed Bill

The Democrat-controlled Colorado General Assembly has introduced a bill that would allow cities to set their own minimum wages. Colorado law currently prohibits municipalities from setting minimum wages higher than the state rate (currently  $11.10 an hour, with an increase to $12.00 an hour in 2020).

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