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Labor and Employment Law Updates

Employer’s “Use It Or Lose It” Vacation Pay Policy Upheld by Colorado Court of Appeals

The Colorado Court of Appeals recently held that an employer’s refusal to pay a terminated employee’s accrued but unused vacation time did not violate the Colorado Wage Claim Act (“CWCA”).

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Trucking Companies Do Need Not to Pay Drivers for Off-Duty Time in Sleeper Berths

The U.S. Department of Labor’s Wage and Hour Division (“DOL”) has set forth new guidelines for compensating long-haul truck drivers for off-duty time spent in sleeper berths. Under a recent DOL opinion letter, employers need not pay drivers for time they are relieved of all duties and permitted to sleep in adequate sleeping facilities such as a sleeper berth.

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EEO-1 Submissions for Larger Employers Due September 30, 2019

On or before September 30, 2019, private employers with at least 100 employees must must submit data regarding employees’ W-2 compensation information and hours worked (which the Equal Employment Opportunity Commission (“EEOC”) refers to as a “Component 2” EEO-1) for years 2017 and 2018, the EEOC has announced.

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Update to Tip Pooling Notice Requirements in Colorado

Starting August 2, 2019, Colorado businesses that require or administer tip pools for employees must comply with new notice requirements. Colorado businesses that pool tips previously were required to post a conspicuous notice on a printed card stating that tips given to employees belonged to the employer, rather than the employee.

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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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