Labor & Employment Law Updates
The newly-confirmed General Counsel of the National Labor Relations Board (“NLRB”), Peter B. Robb, issued a Memorandum that signals sweeping, management-friendly changes for the NLRB’s Office of the General Counsel. In his Memorandum, the General Counsel announced a wide-range of cases that must be sent to the Division of Advice (which provides guidance on “difficult and novel issues”), for re-analysis.
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Paid leave has been a high-profile issue in Congress this year after President Trump and his daughter, White House aide Ivanka Trump, asked Congress to find ways to consider paid leave for working families. In Colorado, there is currently no requirement for employers to provide paid family and medical leave to their employees. Several bills have been introduced to Congress this year which would allow employees to receive some form of paid leave.
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The #MeToo movement—in which women and men have used social media to share their stories of sexual harassment—has had wide-reaching effects. The movement has exposed harassment by esteemed entertainers, businesspeople, and newsmen, resulted in numerous termination decisions, and, some say, has “destigmatize[ed]” the issue for victims of sexual abuse and harassment.
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In 2018, the federal minimum wage will remain at $7.25 per hour, which has been the rate since 2009. Numerous states, cities, and municipalities have minimum wage requirements that exceed the federal rate. In 2018, the minimum wage rates in 19 states, including Colorado, and the District of Columbia, will increase.
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As companies evaluate their year-end performance, many will decide to close plants or lay off employees in unprofitable divisions. Before doing so, companies should pay close attention to the requirements of the Worker Adjustment and Retraining Notification Act of 1988 (“WARN Act”).
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Last week, the Tenth Circuit upheld a dismissal of an employee’s age discrimination, disability discrimination, and retaliation claims. This decision reminds employers that courts will not allow every claim filed by an employee to proceed.
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On October 30, 2017, the U.S. Department of Labor (“DOL”) appealed the federal district court decision striking down the Obama-Era white collar exceptions, which proposed raising the salary level at which companies must pay overtime to employees from $23,660.00 to $47,476.00 per year. The DOL plans to ask the court to stay the appeal while considering whether to re-write the overtime rule.
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This article discusses recent legislative activity in the U.S. House of Representatives and Senate that reflects a move toward employer-friendly legislation, as well as tighter mandates concerning verification of employees to work in the United States.
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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.
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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.
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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.
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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”).
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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