The Rocky Mountain Employer

The United States Department of Labor’s (“DOL”) Wage and Hour Division (“WHD”) announced that it will seek a request for information (“RFI”) from employers regarding hours logged by non-exempt employees outside of normal work hours on smart phones and other portable devices.  Coupled with the DOL’s recent white-collar exemption changes (see related article), which will significantly increase the number of non-exempt employees, Employers should begin considering how they record non-exempt employee after hours cell phone usage for business purposes.

Employers across the country may notice distracted employees and lower productivity levels this summer.  One potential distraction that has garnered significant media coverage is a smart phone application called “Pokémon Go.”  Employers are already noticing the application’s effects on employee productivity, and coupled with other major events happening this summer, now may be an appropriate time for employers to revisit policies regarding cell phone and internet usage while on the clock.  This article analyzes employee distractions, and how employers should revisit productivity policies and ensure that management follows best workplace practices when enforcing such policies.

El Azteca Restaurant recently agreed to pay $700,000.00 in back wages and liquidated damages for alleged Fair Labor Standards Act (“FLSA”) violations, settling a United States Department of Labor (“DOL”) enforcement action.  The DOL’s investigation allegedly uncovered basic FLSA violations, including paying non-exempt employees flat salaries regardless of their total hours worked; deducting uniform costs from employees’ pay that resulted in paying employees below the minimum wage; inaccurately recording hours worked; and in some cases, denying wages for all hours worked.  The settlement is the DOL’s latest attempt to scrutinize the restaurant industry, and according to DOL Secretary Thomas Perez, the DOL will continue to scour the restaurant and other Priority Industries for FLSA violations.  

Employers may soon face increased enforcement proceedings by the Equal Employment Opportunity Commission (“EEOC’) regarding sexual orientation discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”).  On June 28, 2016, the EEOC settled one of its first sexual orientation discrimination lawsuits with IFCO Systems for over $200,000.00.  While Title VII does not expressly protect sexual orientation, the recent settlement highlights the EEOC’s push to interpret the statute to protect employees against discrimination based on sexual orientation.  This article analyzes Title VII’s scope; the EEOC’s initiative to include sexual orientation discrimination as part of Title VII;, and the potential impact the EEOC’s initiative may have on employers.

Companies with wellness programs that offer financial incentives and collect medical information or require medical exams will soon have to provide their employees notice about what medical information will be collected and how it will be used and kept confidential.  Otherwise, the company will be subjected to ADA discrimination suits.  On May 17, 2016, the Equal Employment Opportunity Commission (“EEOC”) published its final rule permitting employers to offer financial incentives to encourage employees to participate in the company’s voluntary employee health programs covered by Title I of the Americans with Disabilities Act (“ADA”), provided the company gives their employees notice regarding information collected as part of participating in the wellness program (the “ADA Rule”).  This article analyzes the ADA Rule’s notice requirements and its impact on employers.

Following the mass shooting at an Orlando nightclub on June 12, 2016 (the “Orlando Shooting”), Lesbian, Gay, Bisexual, and Transgender (“LGBT”) rights groups and their Congressional supporters are rekindling efforts to pass the Equality Act, which would amend Title VII of the Civil Rights Act of 1964 (“Title VII”) to prohibit discrimination based on sexual orientation and gender identity.[1]  This article analyzes the Equality Act and its potential impact on employers.

In a 2-1 decision, the National Labor Relations Board (“NLRB” or “Board”) set forth a new standard for determining when an employer may legally hire permanent replacement workers during an economic strike. The new standard considers an employer’s motivation for hiring permanent replacements and as a consequence materially limits employers’ ability to exercise a key economic “weapon” in response to a strike.

On June 1, 2016, Colorado Governor John Hickenlooper signed into law House Bill 16-1438, which requires all Colorado employers to engage in an interactive process to determine if the employer can reasonably accommodate requests by applicant or employees for conditions related to pregnancy or childbirth.  See Campbell Litigations related article for more specific details about the new law.  The new law will go into effect on August 10, 2016.

The Supreme Court has ruled that the limitations period for filing a constructive discharge action under Title VII of the Civil Rights Act of 1964 (“Title VII”) runs from the date an employee resigns—not from the date of the employer’s last alleged discriminatory act. As explained in this article, the Green v. Brennan decision does not change employees’ or employers’ substantive rights, but does provide clarity as to when a former employee must file a constructive discharge claim.

National Labor Relations Board (“NLRB” or “Board”) General Counsel Richard F. Griffin, Jr., has asked the NLRB to place further restrictions on an Employers’ right to unilaterally withdraw recognition, and has directed the NLRB’s regional offices to argue that any unilateral withdrawal of recognition of a union is unlawful, absent a Board election. Griffin’s request is set forth in Memorandum GC 16-03.

The United States Department of Labor’s (“DOL”) Wage and Hour Division will publish its final rule for the White-Collar Exemptions tomorrow, May 18, 2016.  It is expected that the final rule will increase the minimum salary threshold to be exempt from the Fair Labor Standards Act’s overtime requirements from $445 per week (or $23,660 per hear) to $913 per week (or $47,476 per year), which is slightly less than the previously expected $970 per week (or $50,440 per year).  While the DOL previously indicated it would give employers only sixty (60) days to comply with the rule, the final rule will not take effect until December 1, 2016, providing employers nearly 200 days to comply. 

Employers may continue to follow the Fair Labor Standards Act (“FLSA”) regulation that permits rounding employees’ hours to the nearest quarter hour (the “Rounding Regulation”), even where an individual employee fails to earn their entire compensation over a period of time due to a neutral rounding policy.  The Ninth Circuit became the first appellate court to address this issue in Corbin v. Time Warner Entertainment-Advance/NewHouse Partnership (“TWEAN”), and ruled that despite the employee demonstrating he lost hours due to the employer’s neutral rounding policy, the Rounding Regulation protected the employer from FLSA liability.  This article analyzes the Rounding Regulation, the Ninth Circuit’s decision, and the practical implications for employers.

The Colorado Legislature will adjourn Friday, May 6, 2016, but two pieces of legislation remain that could have a significant impact on Colorado employers.  The bills would require Colorado employers to provide access to personnel files, and potentially provide reasonable accommodations to applicants and employees for conditions related to pregnancy or childbirth.  This article analyzes each bill and its potential impact on Colorado employers, and provides an update on other pieces of employment-related legislation that failed to pass in Colorado this session.

Employers may soon receive federal protection for their trade secrets.  On April 27, 2016, the United States House of Representatives passed the Defend Trade Secrets Act of 2015 (“DTSA”) by an overwhelming 410-2 margin, and the legislation will now go to President Obama, who supports the bill, for his signature.  The DTSA will provide a federal private right of action for employers and increase protections for employers’ trade secrets, however, the DTSA may also present challenges to employers who seek the Act’s protections.  This article analyzes the DTSA, its potential benefits and disadvantages, and best practices for employers.

The Americans with Disabilities Act of 1990 (“ADA”) does not protect obese employees unless the obesity results from a physiological disorder, according to a recent ruling from the Eighth Circuit Court of Appeals (“Eighth Circuit”). The Eighth Circuit (which hears appeals from federal courts in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota) further held that the ADA Amendments Act of 2008 (“ADAAA”), which significantly expanded the ADA’s coverage, did not alter the requirement that a physical characteristic, such as a person’s weight, must be the result of a physiological disorder or condition before potentially falling within the ADA’s protections.  This article analyzes the Eighth Circuit’s decision and practical implications for employers.

A campaign of marches, strikes, and protests are occurring today (April 14, 2016) in over 300 cities and over 40 countries, as part of the so-called “Fight for $15.”  News reports largely focus on the protests’ stated goal—to raise the minimum wage nation-wide to $15 an hour.  These reports highlight recent legislation in New York State and California to increase the minimum wage to $15 per hour.  The Fight for $15, however, is not focused solely on wages.  Led by the Service Employees International Union (“SEIU”), the Fight for $15 campaign is a non-traditional attempt to promote unionization in traditionally non-unionized industries.  

The national campaign to raise the minimum wage (“Fight for $15”) may soon have an impact on Colorado employers.  California and New York recently became the first two states to enact legislation that will eventually raise the minimum wage in those states to $15.00.  While Colorado’s attempts to pass similar legislation in 2015 failed, the Fight for $15 campaign has inspired a 2016 ballot initiative that would significantly increase the state’s minimum wage, and state Democrats recently introduced legislation that would punish large employers who fail to pay more than $12.00 per hour.  This article analyzes Colorado’s current minimum wage and past Fight for $15 efforts, the 2016 ballot initiative and recently introduced legislation, and how they would have a tremendous impact on Colorado employers.

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.