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Labor & Employment Law Updates

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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Colorado’s 2019 Legislative Session Expected to Bring a Slew of Workplace Bills

Colorado’s 2019 Legislative Session begins January 4, 2019, and, with a new Democratic governor and the Democratic party controlling both chambers of the General Assembly, we expect to see the introduction of numerous workplace and arbitration related bills with potentially far-reaching, and onerous, effects on employers. The following bills, which failed in previous years, likely will be the focus of serious debate between now and late May 2019, when the legislative session is scheduled to end:

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Private Employers Impacted by Partial Government Shutdown  

The partial government shutdown, which began December 22, 2018 and has caused hundreds of thousands of federal workers to stop working or work without pay, has begun to affect private employers who are not government contractors, and employees of such companies, in the following ways:

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Minimum Wages Set to Increase in Twenty-One States

As we approach the end of the year, employers should be aware that minimum wages are set to increase in twenty-one states in 2019.  The following table, which supplements The Rocky Mountain Employer’s post earlier this year, sets forth the upcoming 2019 increases in minimum wages and tipped employee minimum wages.

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Unauthorized Copying of Co-Worker Personnel Files to Support Discrimination Claim Is Not Protected Conduct

An employer did not violate federal law by firing an employee for copying confidential coworker personnel files in an effort to support her discrimination claim, the Fourth Circuit Court of Appeals ruled. The court in Netter v. Barnes rejected the plaintiff’s argument that stealing confidential personnel files for the purpose of proving a discrimination claim is protected conduct under Title VII of the Civil Rights Act of 1964 (“Title VII”).

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Professor’s Claim That Public Union Violates Her Free Speech Rights Rejected by Federal Courts

This week, the Eighth Circuit Court of Appeals upheld the denial of a preliminary injunction in a case challenging the legality of public sector unions.

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Employees May Bring Title VII Failure-to-Accommodate Claims Based on Religion Only When They Have Suffered an Adverse Employment Action

Plaintiffs bringing failure-to-accommodate claims under the Title VII of the Civil Rights Act of 1964 (“Title VII”) based on religion must prove they suffered an adverse employment action such as a termination, demotion, or decrease in pay, under a recent federal district court case in Colorado.

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Campbell Litigation Wishes You a Happy Thanksgiving

Campbell Litigation and the Rocky Mountain Employer wish you a happy and safe Thanksgiving. We will resume postings next Thursday, November 29, 2018.

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Kentucky Companies May Not Condition Employment on Agreement to Arbitrate

The Kentucky Supreme Court has ruled that employers in that state may not require employees to sign an employment arbitration agreement as a condition of employment, as such a condition violates state law.

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The Age Discrimination in Employment Act Applies to All Public Employers, Regardless of Size

The United States Supreme Court ruled that federal Age Discrimination in Employment Act of 1967 (“ADEA”) prohibits age discrimination against all state and local government employees, no matter the size of their employer. The ADEA expressly applies only to private employers with 20 or more employees, but is silent as to whether it applies to all public employers, regardless of size. The unanimous decision in Mount Lemmon Fire District v. Guido settles a split among federal appellate courts as to whether the ADEA applies only to public employers with 20 or more employees.

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Employees May Bring ADA Failure-to-Accommodate Claims Only When They Have Suffered an Adverse Employment Action

Plaintiffs bringing failure-to-accommodate claims under the Americans With Disabilities Act (“ADA”) must prove they suffered an adverse employment action such as a termination, demotion, or decrease in pay, under a recent Tenth Circuit Court of Appeals decision.

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As Election Day Approaches, Employers Should Be Aware of State Voting Leave Requirements

Although elections in Colorado and other states increasingly rely on mail-in ballots, employees may soon be requesting time off to vote on election day—November 6, 2018. Most states require employers to give employees time off to vote, and many states require employers pay for time spent voting during work hours. Below are voting leave requirements for employers operating in Colorado, California, New Mexico, Utah, and Wyoming.

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U.S. Supreme Court to Rule on Important Employment Issues in 2018-2019 Term

The United States Supreme Court’s 2018-2019 session is underway and the employment cases on its docket may have a significant impact on employers, particularly regarding employment arbitration agreements.

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States Respond to #MeToo Movement by Enacting Laws Designed to Curb Sex Harassment in the Workplace

The #MeToo movement has caught the attention of state legislatures across the country. So far, twelve states—ArizonaCaliforniaDelawareIllinoisLouisianaMaryland, Nebraska, New YorkOregonTennesseeWashington State, and Vermont—have enacted new laws providing protections related to sexual harassment in private and public sector workplaces.

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