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Labor and Employment Law Updates

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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Employers Protected From Age-Based Bias Claims Brought by Job Applicants

A federal appeals court has ruled that outside job applicants may not sue companies under the Age Discrimination in Employment Act (“ADEA”) for neutral hiring practices that have a negative impact on older applicants.

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Colorado's “Equal Pay for Equal Work” Bill Moves Forward

A bill that would (1) prohibit Colorado employers from considering a job applicant’s past salary history when determining her pay rate, (2) require employers to post jobs openings (and the wage rate for such job openings) to all employees, and (3) allow employees to recover up to three years of back pay for unequal pay, plus liquidated damages and attorneys’ fees, is moving forward in the Colorado Senate.

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Employers May Be Held Liable for Workplace Sex Gossip

A federal appeals court has held that false rumors about a female employee sleeping with her male boss for a promotion can subject an employer to liability under Title VII of the Civil Rights Act of 1964 (“Title VII”).

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Colorado’s “Ban the Box” Legislation Is Gaining Momentum

The Colorado General Assembly is considering a “ban the box” bill that would prohibit employers from inquiring about applicants’ criminal histories in initial applications, and prohibit advertisements stating those with criminal histories may not apply. The underlying policy for this legislation, which several states have enacted, is to reduce the number of otherwise qualified individuals from not applying for gainful employment because of criminal issues in their past.

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NLRB Gives Companies and Workers Leeway to Operate Under Independent Contractor Model

The National Labor Relations Board (“NLRB”) has re-instated its traditional independent contractor test, acknowledging that many franchisees and freelance contractors have significant opportunities for both economic gain and loss, and therefore should be treated as small businesses.

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Employees’ Failure to Report Harassment May Not Prevent Employer Liability

In the wake of heightened focus on sexual harassment in the workplace, employers may find it more difficult to have even weak harassment cases dismissed before trial. This proved to be the case in Minarsky v. Susquehanna County, where a federal appeals court ruled that an employee’s failure to utilize her employer’s harassment reporting procedures was reasonable and did not prevent the employer from potentially being liable for years’-long harassment.

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Supreme Court Expected to Provide Clarity on Exhaustion of Remedies Requirement

The U.S. Supreme Court will consider whether federal courts have the power to review claims brought under Title VII of the 1964 Civil Rights Act (“Title VII”) 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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Supreme Court Delivers Another Victory for Arbitration Agreements

In a unanimous opinion, the U.S. Supreme Court held this week that where an agreement gives an arbitrator authority to decide what disputes must be arbitrated, courts may not refuse to send a case to arbitration even if it is clear from the terms of the contract that the request to arbitrate is “wholly groundless.”

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