The Rocky Mountain Employer

A key challenge to preparing for trial in an employment case is choosing the best corporate witnesses.  Among other traits, a corporate witness should have knowledge on key facts supporting the defense and should be able to testify consistently with the corporate storyline.  A corporate witness of course should also be credible and have a good demeanor.  The challenge of choosing a witness is heightened in employment litigation, where agency investigations and litigation often spans several years, during which time corporate turnover leaves an employer unable to effectively tell its story through testimony of its own corporate officers and management.  As a result, employers often must rely on the testimony of their former employees. 

The Department of Labor-Management Standards’ (“OLMS”) final “Persuader” rule, issued on March 23, 2016, will have a significant impact on both employers and their labor counsel during unionization campaigns.  The rule is the most recent attempt by the current administration to strengthen labor unions.

The Persuader rule requires an employer to disclose details about its relationships with outside consultants—including third-party attorneys—engaged to assist in certain activities during unionization campaigns.  Unlike the current rule, the revised Persuader rule requires disclosure regardless of whether the consultant or attorney has direct contact with the employees.  As a result, the rule will require law firms who assist employers in such activities to disclose the relationship and their fees. 

This article focuses on the Persuader rule and how it represents a major change to the Advice Exemption, potential challenges to the implementation of the rule, and the rule’s impact on employers and their labor counsel.

Two recent federal agency actions may have a significant impact on employers in the near future.  The United States Department of Labor’s Wage and Hour Division (“WHD”) advanced its draft final rule for the White-Collar Exemptions one step closer to publication, while comments to the Equal Employment Opportunity Commission’s (“EEOC”) proposed retaliation guidance suggest employers may soon face increased investigation of meritless claims.  This article examines the status of the WHD’s final White-Collar Exemption rule, and an update regarding the EEOC’s proposed retaliation guidance.

Five generations are working together in the workplace for the first time in history.  As workplace demographics change and the potential for inter-office conflict between generations increases, companies must adapt and encourage flexible policies and procedures to effectively manage their workforce.  This article focuses on the five generations and their general characteristics, the potential for conflict between generations, and the best practices to effectively manage the five generations.

Employers increasingly find themselves faced with employees who engage in misconduct by misappropriating confidential company information in violation of a confidentiality agreement.  However, the best way to address this situation and protect the company’s confidential and proprietary information is more difficult than it initially appears where the employee misconduct is taken as part of a purported whistleblower action. 

Yesterday, the United States Department of Labor (“DOL”) published a proposed rule requiring federal contractors to provide paid sick leave to their employees.  Congress and State legislatures around the country are also considering bills that would require employers who do not contract with the federal government to provide sick leave to their employees.  This article discusses DOL’s proposed rule and federal and state legislation that may require private employers to provide paid sick leave.

The Gig Economy refers to the growing trend where workers disregard the traditional job market, and work for themselves on piece-rate jobs through mobile applications such as Uber, Grubhub, Task Rabbit, or one of the various other service oriented mobile applications.  As the Gig Economy continues to grow, employers must not lose sight of how they classify Gig Economy workers.  This article discusses the Gig Economy and its quasi-independent contractor/employee nature, and how courts continue to use traditional tests to determine whether Gig Economy workers are independent contractors or employees.

The Equal Employment Opportunity Commission’s (“EEOC”) 2016 initiatives include, but are not limited to, soliciting comment from employers on proposed retaliation guidance; emphasizing lesbian, gay, bisexual, and transgender (“LGBT”) employee rights as sex discrimination; and focusing on creating a national law firm model to allow the EEOC to pursue more systemic claims.  This article analyzes the agency’s 2016 initiatives and its effects on employers.

In 2016, two anticipated United States Labor Department’s Wage and Hour Division (“WHD”) actions will significantly impact employers.  This year, the WHD will likely publish the final rule on changes to white-collar exemptions earlier than previously expected and issue guidance regarding employee usage of electronic devices outside of work.  This article discusses the WHD’s anticipated 2016 actions and their effects on employers.

In the 2016 legislative session, the Colorado Legislature will be addressing several pieces of legislation that could significantly impact Colorado employers.  On January 27, 2016, Senator Chris Holbert (R-District 30), Chair of the Senate Business, Labor & Technology Committee, addressed the Labor and Employment Council for the Colorado Association of Commerce & Industry and provided an overview of the upcoming employment legislation.  Campbell Litigation attended the meeting and provides the following summary.

Colorado employers may soon see a significant payroll tax increase.  In November 2016, Colorado voters will decide whether to adopt Amendment 69 (“ColoradoCare”), a universal healthcare system that would eliminate the state’s healthcare exchange and private health plans offered by employers.  If implemented, Colorado employers would largely be responsible for paying for ColoradoCare and its estimated $25 billion price tag.  This article analyzes ColoradoCare and its potential impact on employers.

In the wake of Cargill’s recent religious accommodation dispute, employers should be aware of their responsibilities regarding religious workplace accommodations.  Cargill, the largest private company in the United States, made national headlines when it terminated 150 Muslim employees for failing to show up for work after a prayer dispute.  While the company followed its neutral attendance and religious accommodation policies, the controversial nature of the terminations have sparked interest regarding religious accommodations in the workplace.  This article analyzes the Cargill terminations and an employer’s responsibilities regarding religious workplace accommodations.

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.