The Rocky Mountain Employer

The Rocky Mountain Employer

The Weekly Guide to Employment Law Developments

New Focus on Immigration Based Bias Against U.S. Workers

Employers who hire foreign workers are now likely to undergo additional scrutiny. The United States Department of Justice Immigrant and Employee Rights Section (“DOJ/IER”) and the State Department’s Bureau of Consular Affairs (“DOS/CA”) have teamed up in a new effort to combat visa fraud and discrimination against U.S. workers. The aim of the partnership is to protect U.S. workers from discrimination by an employer preferring to hire foreign workers. The agencies will share information about employers that may be engaging in unlawful discrimination, such as by making misrepresentations in their use of employment-based visas.

Campbell Litigation, P.C.October 19, 2017Comment

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Trump Administration: Federal Civil Rights Law Does Not Protect Transgender Workers

With the release of a Justice Department memo on October 5 titled “Revised Treatment of Transgender Employment Discrimination Claims,” signed by Attorney General Jeff Sessions, the Trump administration has cast aside any uncertainty about its position of federal protections for transgender workers. Referring specifically to Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination on the basis of sex, the memo asserts that federal civil rights law does not protect transgender people from discrimination at work. The memo was sent to all U.S. attorneys and the heads of all federal agencies.

Campbell Litigation, P.C.October 12, 2017Transgender, Trump, Sex Discrimination, OSHAComment

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Self-Funded Employee Benefit Plans in California Retain their Discretion to Decide Benefits and Are Less Likely to be Subject to Discovery in ERISA Litigation

The Ninth Circuit Court of Appeals recently held that the Employee Retirement Income Security Act of 1974 (“ERISA”) preempts application of California’s anti-discretionary clause law to self-funded employee benefits plans. From a practical standpoint, the decision: (1) prevents courts from reviewing evidence outside the plan administrator’s decision, (2) limits claimants’ (plan participants or beneficiaries) ability to seek discovery in ERISA cases, and (3) requires courts to give greater deference to administrative decisions.

Campbell Litigation, P.C.October 5, 2017ERISA, 9th CircuitComment

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Is Your Independent Contractor Truly Independent?

A Denver federal court rejected a company’s argument that it was entitled to summary judgment on wage claims because the plaintiff was an independent contractor. Although plaintiff’s title was Director and Business Analyst for the defendant company (“Company”) and he at times described himself as a “1099 employee,” he signed an “employment agreement” with the Company, but the Company did not pay plaintiff directly. Instead the company made payments to the plaintiff’s limited liability company. After the work relationship ended, plaintiff claimed that the Company failed to pay his earned, vested wages at the time of his termination, in violation of the Colorado Wage Act (the “CWA”), and failed to pay minimum wage, in violation of the Fair Labor Standards Act (“FLSA”).

Campbell Litigation, P.C.September 28, 2017Comment

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Stacey Campbell Appointed Co-Chair of NAMWOLF Labor & Employment Law PAC

Campbell Litigation is proud to announce that Stacey Campbell has been appointed as a Co-Chair of the Labor and Employment Law Practice Area Committee (L&E PAC) for the National Association of Minority & Women Owned Law Firms (NAMWOLF). Mr. Campbell will serve in this role for the next two years.

Campbell Litigation, P.C.September 21, 2017NAMWOLF, labor and employmentComment

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Obama-Era Increase in Minimum Salary Level for Overtime Exemption Officially Invalidated

The same judge who preliminary enjoined the Obama-era Department of Labor (“DOL”) Final Rule raising the minimum salary level for overtime exemption two weeks before it was set to take effect on December 1, 2016, struck down the rule on August 31, 2017. The rule would have raised the minimum salary for an individual to be exempt from overtime pay from $455 per week ($23,660 annually) to $913 per week ($47,476 annually). Judge Amos L. Mazzant of the U. S. District Court of the Eastern District of Texas, who was nominated to the bench by former President Obama in 2014, granted summary judgment for the groups of plaintiffs that challenged the rule, consisting of the Plano Chamber of Commerce, more than 50 business groups from Texas and across the nation, and 21 other states.

Campbell Litigation, P.C.September 14, 2017FLSA, overtime, DOL, Colorado, Eastern District of TexasComment

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Controversial Obama-Era Employee Pay Reporting Rule Suspended

Last week, the Acting Chair of the Equal Employment Opportunity Commission (“EEOC”) announced that the Office of Management and Budget (“OMB”) was immediately suspending, and would further review, Obama-era pay data reporting rules. The decision is a relief to larger businesses, many of which had decried the significant administrative expenses and burdens of Obama administration’s reporting rules.

Campbell Litigation, P.C.September 7, 2017EEO-1 Reporting, EEOC, Colorado, ObamaComment

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EEOC’s Rules Allowing 30% Reduction in Health Coverage Premiums for Employees Health Information, Kicked Back to EEOC for Reconsideration

Last week, the American Association of Retired Persons (“AARP”) won a challenge to the Equal Employment Opportunity Commission’s (“EEOC”) rules regarding employee wellness programs. This post discusses the legal challenge, the EEOC rules at issue, and practical takeaways for employers.

Campbell Litigation, P.C.August 31, 2017Comment

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During Flu Season, Immunize Your Company Against the Legal Risks of Vaccination Policies

As flu season approaches, employers often ask: can we require our employees to get a flu shot? The answer? Sometimes. Although some employers, particularly in the healthcare field, require employees to get immunized, employers should beware of legal risks created by the policies mandating vaccinations for employees. If an employer mandates vaccination, an employee may have a right to an exemption from the policy based on the employee’s medical history or religious beliefs.

Campbell Litigation, P.C.August 24, 2017flu season, EEOC, Title VII, Americans with Disabilities ActComment

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Employers Should Be Mindful of “Lawful Activities” Statutes When Making Employment Decisions Based on Employees’ Off-Duty Conduct

In response to white nationalist rallies in Charlottesville, Virginia, social media users are asking their followers to identify rally participants, and urging the participants’ employers to fire them. At least one white nationalist participant lost his job at a restaurant in Berkeley, California, based on his participation in the rallies. Despite the fact that a great majority of employees in the United States are “at-will” employees, meaning they can quit or be fired without warning for any non-discriminatory reason, employers should carefully consider the legal consequences of terminating an employee for engaging in extremely distasteful, yet legal, conduct.

Campbell Litigation, P.C.August 17, 2017Charlottesville, at-will employees, off duty activitiesComment

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Eighth Circuit Finds Independent Contractor Noncompete Agreement to be Unenforceable

The Eighth Circuit Court of Appeals ruled last week that an Iowa company in the business of selling fertilizer, nutrients, and crop-management services could not enforce a noncompetition agreement against a former independent contractor, a sales representative. In AG Spectrum Co. v. Elder, the noncompetition provision prohibited the sales representative from competing with the company for three years if either party ended the contractual relationship. The court found that the company did not show that the noncompetition provision in its independent contractor agreement was reasonable – the governing test under Iowa contract law. In Iowa, the ultimate goal of enforcing noncompetition agreements is to prevent unjust enrichment.

Campbell Litigation, P.C.August 10, 2017Colorado, noncompete, Eighth CircuitComment

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What You Should Know: Federal and State Employment Protections for Transgender Workers

In light of the publicity surrounding President’s Trump’s recent tweets regarding transgender individuals serving in the United States military, it is important for employers to be aware of current prohibitions at the state level for employment discrimination based on an employee’s status as a transgender man or woman, as well as the Equal Employment Opportunity Commission’s (“EEOC”) current view that Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits discrimination based on transgender status. A transgender person is someone whose gender identity differs from the sex marked on their birth certificate.

Campbell Litigation, P.C.August 3, 2017Trump, Trump Twitter, Transgender, Colorado Anti-Discrimination Act, CADA, EEOCComment

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U.S. Department of Labor Will No Longer Enforce Obama-Era Tip-Pool Regulation

The United States Department of Labor (“DOL”) will no longer enforce an Obama-era regulation concerning when and how employers may use tip-pools (i.e., pools of tips collected by restaurants and other service industry employers, and redistributed among employees). The 2011 regulation prohibited employers who did not take a “tip credit”—that is, employers who paid their employees the full minimum wage—from requiring their tipped employees, such as servers and bartenders, to share tips with non-tipped employees, such as dishwashers, cooks, hosts, and floor supervisors. Previously, courts had held that prohibitions on tip pooling could apply only to employers who took a tip credit.

Campbell Litigation, P.C.July 27, 2017tip-pools, tips, tip credit, tenth circuitComment

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Fifth Circuit Decision Highlights Importance of Harassment Reporting Policies

This week, the Fifth Circuit Court of Appeals affirmed the summary judgment dismissal of an employee’s claim that he experienced a hostile work environment because of his disabilities—namely, stuttering and anxiety problems. The decision rests on the plaintiff’s failure to internally complain about alleged harassment, and shows just how important workplace reporting policies are.

Campbell Litigation, P.C.July 20, 2017Fifth Circuit, Hostile Work, harassment, employee handbookComment

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U.S. Department of Labor Weighs in on Increase in “White Collar Exemption” Overtime Salary Threshold

In its June 30, 2017, Fifth Circuit Court of Appeals filing, the U.S. Department of Labor (“DOL”) provided its first indications of how the new Administration intends to alter the landscape of mandatory overtime rules. Picking up where the Obama Administration’s May 2016 Final Rule was left, currently under appeal after a November 2016 preliminary injunction blocked its enforcement, the DOL indicated it wants more workers to be eligible for overtime pay, just not as many as the Obama Administration.

Campbell Litigation, P.C.July 13, 2017Comment

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U.S. Supreme Court Provides Limited Guidance to Employers During Last Term But Is Anticipated To Provide More Useful Guidance in Fall

The U.S. Supreme Court decided a few employment-related cases during its 2016 term addressing the appropriate standards for reviewing EEOC issued subpoenas and preventing forum shopping by employees wanting to sue their employers.

Campbell Litigation, P.C.July 6, 2017Comment

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EMPLOYERS MAY FIND COMFORT IN THE ECONOMIC REALITY TEST FOR INDEPENDENT CONTRACTORS

The U.S. Department of Labor (“DOL”) Administrator’s Interpretation No. 2015-1 (“AI 2015-1”) referenced the use of the Economic Reality Test for companies to determine whether workers were independent contractors or employees. President Obama’s DOL further stated that most workers were employees under the Fair Labor Standards Act (“FLSA”). Earlier this month, President Trump’s DOL withdrew AI 2015-1 and on the DOL website, states that removal of AI 2015-1 “does not change the legal responsibilities of employers under the Fair Labor Standards Act . . ..”

Campbell Litigation, P.C.June 30, 2017independent contractor, Fair Labor Standards Act, economic reality testComment

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President Trump’s Department of Justice Reverses Stance on Class Action Waivers – to the Benefit of Employers

In a rare move, the U.S. Department of Justice (“DOJ”) reversed its Obama-Era position in a significant pending Supreme Court case that is expected to resolve a growing circuit split over whether an employment contract that requires an employee to waive his or her right to bring or participate in a class action violates the National Labor Relations Act (“NLRA”). In an amicus curiae brief filed on Friday, June 16, 2017, the DOJ sided with employers, expressly acknowledging that it had “previously filed a petition…on behalf of the NLRB, defending the Board’s view” that class action waivers should be invalidated, but stating that “[a]fter the change in administration, the [DOJ] reconsidered the issue and has reached the opposite conclusion.” In stating that its previous position did not give “adequate weight to the congressional policy favoring enforcement of arbitration agreements that is reflected in the Federal Arbitration Act (“FAA”),” the DOJ argued in its amicus brief that enforcing arbitration agreement with class waivers does not deprive employees under the NLRB, and that enforcement is required under the FAA with certain limited exceptions.

Campbell Litigation, P.C.June 22, 2017NLRA, class actionComment

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Always Check Whether a Plaintiff’s Claim is Timely: Tenth Circuit Court of Appeals Affirms Dismissal of Employment Discrimination Case Filed Six Days Late

Under Title VII of Civil Rights Act of 1964 (“Title VII”), the Americans With Disabilities Act (“ADA”), the Age Discrimination in Employment Act (“ADEA”), and most state anti-discrimination statutes, employees may file a lawsuit no later than 90 days after receiving notice from the administrative agency that the investigation has concluded (a “Notice of Right to Sue”). Courts strictly enforce the 90-day limitations periods, which in Title VII, ADA, and ADEA cases are “condition precedent to suit,” and, in the case of many state anti-discrimination acts, are jurisdictional, meaning a plaintiff’s failure to file within 90 days will strip the court of jurisdiction to hear a claim.

Campbell Litigation, P.C.June 15, 2017Title VII, Civil Rights Act of 1964, Americans with Disabilities Act, Age Discrimination in Employment ActComment

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High Court Limits Employee Forum Shopping

Corporations doing business throughout the U.S. subject themselves to employment lawsuits in various states. Recent U.S. Supreme Court guidance, however, prevents employees from forum shopping their claims to a more favorable jurisdiction, especially when the employee does not live in the jurisdiction and the alleged injury did not occur in the jurisdiction.

Campbell Litigation, P.C.June 8, 2017forum shopping, FELA, Federal Employers Liability ActComment

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