The Rocky Mountain Employer

In 2016, Colorado employers should expect fewer meritless employment discrimination claims, but more emphasis from the Colorado Civil Rights Division (“CCRD”) on working with employees who need service or comfort animals and accommodation of transgendered employees in the workplace.  On December 15, 2015, Colorado Department of Regulatory Agencies (“DORA”) Executive Director Joe Neguse, and CCRD Director Rufina Hernandez addressed the Labor and Employment Council for the Colorado Association of Commerce & Industry (“CACI”) and provided an overview of the CCRD’s 2016 initiatives.  Campbell Litigation attended the meeting and provides the following summary.

The Americans with Disabilities Act (“ADA”) specifically excludes “transsexualism…[and] gender identity disorders [“GID”] not resulting from physical impairments” (the “GID exclusion”) from its definition of “disability,” but the Department of Justice (“DOJ”) has asked a Pennsylvania court to narrow the ADA’s GID exclusion by classifying gender dysphoria as a disability under the ADA.  If the court grants the DOJ’s request, transgender employees would likely be covered under the ADA and employers will likely be required to engage in the interactive process when a transgender employee requests an accommodation. 

             The U.S. Supreme Court will determine whether the time period for filing a charge of discrimination alleging constructive discharge begins to run from the last alleged discriminatory act (the minority view) or the date of the employee’s resignation (the majority view).  This ruling could expand the time period an employee may file a charge of discrimination for constructive discharge claims, even if the last alleged discriminatory act occurred outside the time period for filing a charge of discrimination (45 days for federal employees and 180 days for private employees).

The United States Department of Labor (“DOL”) recently announced major changes to the Fair Labor Standards Act’s (“FLSA”) overtime exemptions to take effect in 2016.  Currently, administrative, executive, and professional employees (“white-collar employees”) who satisfy a duties test, must also meet a salary test and be paid at least $455 per week to be exempt from the FLSA’s overtime requirements.  If the employee satisfies both tests, the employer is permitted to pay the employee on a salary basis without having to pay overtime.  The DOL’s proposed rule more than doubles the current salary requirement to approximately $970 per week, which would cause nearly five million employees to lose their exempt status and become eligible for overtime.  This article explores the proposed changes to the white-collar exemptions, its potential effects, and how employers should prepare.

Prior to 1979, states handled trade secret misappropriation claims in varying ways.  To unify the contrasting state approaches, the National Conference of Commissioners on Uniform State Laws adopted the Uniform Trade Secrets Act (“UTSA”) in 1979.  The UTSA provides protection for information defined as a “trade secret.”  Notably, the UTSA preempts “conflicting tort, restitutionary, and other [state] law . . . providing civil remedies for misappropriation of a trade secret[.]”  However, the UTSA does not preempt contractual remedies, or other civil remedies “not based upon misappropriation of a trade secret[.]”  A UTSA preemption question often arises when an employer sues a former employee for misusing information gained in the course of employment, and asserts both UTSA claims and state tort claims such as breach of trust, common law misappropriation, conversion, unfair competition, and unjust enrichment.  This paper summarizes the current split of authority regarding UTSA preemption and analyzes the challenges employers may face in states adopting the “majority” approach.

Affinity Groups are a popular way for companies to enhance diversity and inclusion goals. These groups provide an opportunity for employees to gather socially, share ideas, and network. They may increase productivity, boost employee morale, enhance marketing, and attract and retain employees—all objectives beneficial to corporate America.  However, Affinity Groups come with various legal and business risks for corporations, including potential employment discrimination and wage claims, unfair labor practice charges, and dissention among employees. 

A new trend to modify or eliminate the traditional performance review is being led by major companies, such as Accenture, Adobe, and Gap, who have eliminated the traditional performance review, and General Electric, perhaps the country’s most influential corporation, who has recently decided to overhaul how it handles reviews. Corporations are moving away from traditional performance reviews to accommodate or better relate to the newer generation of employees, lighten the growing burden on managers, and save significant cost by modifying or eliminating performance reviews.  While nearly ten percent of Fortune 500 companies have eliminated traditional performance reviews, the current trend may see that number double in the next year.  As the performance review landscape changes, however, that shift could have a profound impact on employers when defending discrimination lawsuits.

 Lateef Taresh might appear to have a common goal: graduate from college, eventually enter the IT field, and provide a quality education for his children. However, there’s nothing common about the ambition and sheer gumption required to get Taresh where he is today.