The Rocky Mountain Employer

The United States Supreme Court began its 2016-2017 term on October 3, 2016 and promptly denied review in hundreds of cases, including twenty-nine (29) key labor and employment cases.  The Supreme Court currently has granted review to only thirty-one (31) cases in total—despite typically hearing approximately eighty (80)—and only one case involves a labor and employment matter.  Several commentators believe that the Court’s caution in granting review of cases is because the Court currently only has eight (8) members due to Justice Scalia’s death in February 2016 and the Senate Republican’s refusal to consider President Obama’s nomination of Judge Merrick Garland.  This article analyzes some of the key labor and employment cases that were denied review and what effect the denial may have on employers.

Stacey Campbell and Dan Combs, of Campbell Litigation, P.C., participated in a series of meetings with Colorado and Wyoming Representatives and Senators, congressional staff, and the National Association of Manufacturing in Washington, D.C., focusing on labor and employment regulatory overreach. The meetings were the key feature of a Colorado Association of Commerce and Industry’s (“CACI," which is Colorado’s State Chamber of Commerce) six-person trip to Washington, D.C. in September 2016.

The United States Department of Labor’s (“DOL”) Wage and Hour Division’s final rule increasing the minimum salary threshold for White-Collar employees to be exempt from overtime from $445 per week (or $23,660 per year) to $913 per week (or $47,476 per year) (the “DOL Overtime Rule”) is set to take effect December 1, 2016 (See Related Article).  However, twenty-one (21) states, led by Texas and Nevada, have sued the DOL seeking to prevent the implementation of the DOL Overtime Rule.  If the lawsuit is successful, an injunction would prevent the DOL Overtime Rule from taking effect.

The United States Supreme Court may finally determine whether employment arbitration agreements that contain class action waiver clauses are enforceable.  There is a deep split in the federal appellate courts on this issue, as the Seventh Circuit Court of Appeals (“Seventh Circuit”) and the Ninth Circuit Court of Appeals (“Ninth Circuit”) have agreed with the National Labor Relations Board (“NLRB”) that such waivers violate employees’ rights under the National Labor Relations Act (“NLRA”), while the Second Circuit Court of Appeals (“Second Circuit”), Fifth Circuit Court of Appeals (“Fifth Circuit”), Eighth Circuit Court of Appeals (“Eighth Circuit”), and Eleventh Circuit Court of Appeals (“Eleventh Circuit”) have held that class action waivers are enforceable under the Federal Arbitration Act (“FAA”).  The Supreme Court has received petitions for writ of certiorari from both employers and the NLRB asking the Court to decide whether class action waivers in employment arbitration agreements are enforceable.  This article analyzes the NLRB’s position and circuit split, the likelihood that the Supreme Court will decide the issue, and practical implications for employers.

This November, Colorado voters will make two key decisions that may have significant impact on Colorado employers: (1) whether to adopt Amendment 69, which would create ColoradoCare, a state-chartered universal insurance system, funded by a 10 percent payroll tax (the “ColoradoCare Amendment”) (see related article); and (2) whether to adopt Amendment 70, which would gradually increase the state minimum wage to $12.00 by 2020 (the “Minimum Wage Amendment”) (see related article).  Recent polling indicates that voters will likely overwhelmingly reject the ColoradoCare Amendment, but will approve the increase in minimum wage.

The United States Department of Justice (“DOJ”) issued a proposed rule that would: (1) expand employer liability for engaging in “unfair” eligibility verification practices; and (2) allow up to five (5) years to bring a complaint against a company for such alleged violations.

In a 3-1 decision, the National Labor Relations Board (“NLRB”) adopted a “new policy of awarding search-for-work and interim expenses” to terminated employees. The new policy announced in King Soopers, Inc. will expose employers to increased damages in unfair labor practice cases involving terminated employees.

In a 2-1 decision applying the recently-expanded joint employer test, the National Labor Relations Board (“NLRB”) held that a staffing company and construction company are joint employers, and overruled the regional director’s dismissal of an election petition.

The United States Department of Labor (“DOL”) will soon be publishing its final rule that will require federal contractors to provide paid sick leave to their employees.  The final rule, which the DOL will publish by September 30, 2016, will likely follow the proposed rule and require employers entering into new or renewed contracts with the government after January 1, 2017 to provide one hour of paid sick leave for every thirty (30) hours of work.

Employers facing sexual orientation discrimination claims under Title VII of the Civil Rights Act of 1964 (“Title VII”) may now use a federal appellate court decision to help defend against such a claim.  While the Equal Employment Opportunity Commission (“EEOC”) makes its push to include sexual orientation as a Title VII protection, the United States Court of Appeals for the Seventh Circuit (the “Seventh Circuit”), which considers appeals from federal courts in Illinois, Indiana, and Wisconsin, rejected the agency’s Title VII interpretation.  This article analyzes the Seventh Circuit’s decision and provides practical takeaways for employers.

The federal minimum wage will likely soon be changing.  Both Democratic Presidential Nominee Hillary Clinton and Republican Presidential Nominee Donald Trump have announced they intend to increase the federal minimum wage.  The question is, by how much?  This article analyzes both current federal and state minimum wages, and the process required to increase the minimum wage.

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.