The Rocky Mountain Employer

In 2017, we will continue to focus on the areas of most importance for employers not only in the Rocky Mountain region, but across the country as well.  In 2017, we anticipate that some of the key areas impacting employers will include: The Trump Administration’s relaxing of regulations on employers; The Supreme Court ruling on whether arbitration agreements can include class action waivers; likely increases to the minimum wage; and further guidance regarding LGBT protections under Title VII of the Civil Rights Act of 1964.

Campbell Litigation often counsels its clients regarding the importance of documenting employee performance issues pursuant to company policy.  Documentation is particularly important in light of the Equal Employment Opportunity Commission’s (“EEOC”) increased efforts to enforce disability laws, including the Americans with Disabilities Act (“ADA”).  A recent Tenth Circuit Court of Appeals (“Tenth Circuit”) decision highlights the importance of documenting employee performance issues, as well as the ADA’s requirement that employers have knowledge of an employee’s disability before the employer may be liable under the Act.  This article analyzes the Tenth Circuit decision and provides practical takeaways for employers.

Before employers are ever presented with a charge of discrimination or complaint in an employment lawsuit, plaintiffs’ counsel often investigate their client’s allegations by reaching out to speak with current and/or former employees of the company. The Rules of Professional Conduct, however, limit how and whether plaintiff’s counsel can contact current and/or former employee outside the presence of management’s counsel. This article analyzes some limitations on plaintiffs’ counsel’s communications with management’s current and former employees.

President-elect Donald Trump will likely nominate CKE Restaurants chief executive Andrew Puzder to be the next Labor Secretary.  Puzder has led CKE Restaurants—the parent company of Carl’s Jr. and Hardee’s—since 2000, and has been a vocal critic of President Obama’s labor policy and government intervention in labor markets.  President-elect Trump must still formally nominate Puzder, and the Senate must confirm the nomination before Puzder will be able to take office.  If confirmed, Puzder will likely push for a return to George W. Bush-era policies of reducing regulatory hurdles to help employers create jobs, which would represent a significant change from current Labor Secretary Thomas Perez, who has pushed an employee-friendly labor policy.

Employers must begin using the newly revised Form I-9 (the “New Form I-9”) by January 22, 2017.  The United States Citizenship and Immigration Services (USCIS) recently released the New Form I-9 that replaces the current version, which was released in March 2013 and expired on March 31, 2016 (the “March 2013 Form I-9”).  Employers may use either the March 2013 Form I-9 or the New Form I-9 until January 21, 2017.  This article analyzes the changes made to the March 2013 Form I-9 and the practical impact on employers.

A federal judge in the United States District Court for the Eastern District of Texas has granted a nationwide preliminary injunction that temporarily enjoins the enforcement of the Department of Labor’s (“DOL”) Overtime Rule.  The DOL’s Overtime Rule, which would have gone into effect December 1, 2016, would have increased the minimum salary threshold for White-Collar employees to be exempt from overtime from $445 per week ($23,660 per year) to $913 per week ($47,476 per year).  For now, the preliminary injunction preserves the status quo, meaning employers must only pay White-Collar employees who satisfy the DOL’s duties test at least $445 per week ($23,660 per year) on a salary basis in order for the employee to be exempt from overtime. 

On November 16, 2016, there were two major developments in federal court regarding the Department of Labor’s (“DOL”) Persuader Rule and Overtime Rule that could have a significant impact on employers throughout the country. A federal judge in the United States District Court for the Northern District of Texas granted a permanent, nationwide injunction preventing the DOL’s implementation of the Persuader Rule because it was inconsistent with the Labor-Management Reporting and Disclosure Act (“LMRDA”).  In the United States District Court for the Eastern District of Texas, a federal judge heard arguments regarding whether to grant a preliminary injunction to prevent the implementation of the DOL’s Overtime Rule, and plans to rule by November 22, 2016.  This article analyzes both federal court rulings and their practical implications for employers.

Colorado employers will see increases to the state’s minimum wage over the next four years, but will not have to pay additional payroll tax to support a state-chartered universal insurance system.  On Tuesday, Colorado voters passed Amendment 70, which will gradually increase the state minimum wage—currently at $8.31 per hour—to $12.00 per hour by 2020 (the “Minimum Wage Amendment”), but voted down Amendment 69, which would have created ColoradoCare, a state-chartered universal insurance system that would have required employers to contribute 6.67 percent in additional payroll taxes (the “ColoradoCare Amendment”).

As employee social media usage grows both in and out of the workplace, employers may face more discrimination and harassment allegations based on employee comments and posts on social media platforms, such as Facebook, Twitter, and Instagram.  A recent federal lawsuit filed in the United States District Court for the Eastern District of Pennsylvania highlights this issue, as an American Airlines flight attendant alleged that her male colleagues sexually harassed her through various social media outlets.  This article analyzes the federal lawsuit and provides best practices for how to handle employee social media usage.

The Equal Employment Opportunity Commission (“EEOC”) recently issued its Employment Guidance on Retaliation.  While the EEOC’s Employment Guidance is a useful—albeit lengthy—resource, Campbell Litigation’s Daniel Combs has provided the following article on litigating and defending retaliation claims from a management perspective. 

Campbell Litigation hosted the General Counsel’s Insight on the Economy: A Workforce Perspective event this week at the Ralph L. Carr Judicial Center in Denver, Colorado.  The event featured general counsel from various industries addressing economic and employment trends, including the growth of a diverse workforce; sharing best practices for managing risks associated with a changing workforce; examining the role both in-house and outside counsel play in ensuring a legal team that can address the diverse workforce; and developing strategies to ensure outside legal counsel provides representation to address the changing workforce.

Over the past decade, Colorado has seen significant growth in its economy and in its general population, diversifying the state.  Colorado’s economic and population growth are anticipated to continue into 2017 and beyond, which will lead to an increasingly diverse workforce.  To stay competitive, Colorado companies must adapt and gain understanding into the variety of cultures and life experiences of its employees and management in order to provide the best product or service to its customers.  Failure to adjust corporate practices to the workforce may lead to employee dissatisfaction, high turnover, low productivity, and potential employee lawsuits against the company. 

This article analyzes the economic growth and the changing workforce of Colorado companies, explores the impact of the Equal Employment Opportunity Commission (“EEOC”) on companies as it relates to charges of employment discrimination, and discusses best practices for managing Colorado’s diverse workforce.

Colorado employers may see increased unemployment insurance premiums in 2017.  Throughout 2016, Colorado Department of Labor and Employment (“CDLE”) Executive Director Ellen Golombek has met with business organizations and labor representatives to discuss a potential legislative proposal during Colorado’s 2017 legislative session that would increase the chargeable wage limits per employee from the current limit of $12,200.00, to $16,000.00 in 2018, $20,000.00 in 2019, and $24,000.00 by 2020. 

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.