Labor & Employment Law Updates
Plaintiffs bringing failure-to-accommodate claims under the Title VII of the Civil Rights Act of 1964 (“Title VII”) based on religion must prove they suffered an adverse employment action such as a termination, demotion, or decrease in pay, under a recent federal district court case in Colorado.
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Campbell Litigation and the Rocky Mountain Employer wish you a happy and safe Thanksgiving. We will resume postings next Thursday, November 29, 2018.
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The Kentucky Supreme Court has ruled that employers in that state may not require employees to sign an employment arbitration agreement as a condition of employment, as such a condition violates state law.
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The United States Supreme Court ruled that federal Age Discrimination in Employment Act of 1967 (“ADEA”) prohibits age discrimination against all state and local government employees, no matter the size of their employer. The ADEA expressly applies only to private employers with 20 or more employees, but is silent as to whether it applies to all public employers, regardless of size. The unanimous decision in Mount Lemmon Fire District v. Guido settles a split among federal appellate courts as to whether the ADEA applies only to public employers with 20 or more employees.
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Plaintiffs bringing failure-to-accommodate claims under the Americans With Disabilities Act (“ADA”) must prove they suffered an adverse employment action such as a termination, demotion, or decrease in pay, under a recent Tenth Circuit Court of Appeals decision.
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Although elections in Colorado and other states increasingly rely on mail-in ballots, employees may soon be requesting time off to vote on election day—November 6, 2018. Most states require employers to give employees time off to vote, and many states require employers pay for time spent voting during work hours. Below are voting leave requirements for employers operating in Colorado, California, New Mexico, Utah, and Wyoming.
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The United States Supreme Court’s 2018-2019 session is underway and the employment cases on its docket may have a significant impact on employers, particularly regarding employment arbitration agreements.
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The #MeToo movement has caught the attention of state legislatures across the country. So far, twelve states—Arizona, California, Delaware, Illinois, Louisiana, Maryland, Nebraska, New York, Oregon, Tennessee, Washington State, and Vermont—have enacted new laws providing protections related to sexual harassment in private and public sector workplaces.
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Colorado employers should prepare for an increase in the state minimum wage from $10.20 to $11.10, per hour, and from $7.18 to $8.08 per hour for tipped employees, effective January 1, 2019. The increase comes as a result of Amendment 70, under which Colorado’s minimum wage increases annually by $.90 until it reaches $12.00 per hour in 2020.
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The National Labor Relations Board (“NLRB”) has proposed a joint employer rule change that would upend a controversial Obama-era decision that drastically expanded who can be subject to liability for unfair labor practices and deemed an essential party for collective bargaining. The NLRB’s proposed rule reinstates the “traditional test,” whereby an employer may be considered a joint employer of another employer’s employees only if it possesses and actually exercises substantial direct and immediate control over the employees’ essential terms and conditions of employment.
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As guidance to the U.S. Department of Labor (“DOL”) in its efforts to determine how best to increase the minimum salary for the White Collar Overtime Exemptions, a large gathering of employee and employer advocates from the Rocky Mountain region told the DOL to increase the current annual $23,660.00 salary threshold modestly over a period of several years, at the DOL Listening Session held in Denver on September 14, 2018. Campbell Litigation attended the Session and provides the following summary of participants’ responses to the following questions:
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The number of sex harassment claims filed against employers has increased in the year since the #MeToo movement began. The Equal Employment Opportunity Commission’s (“EEOC”) preliminary 2018 figures show that just under 10,000 sexual harassment claims have been filed to date in 2018, which is a three percent increase over the previous year.
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Under a recent appellate decision, employers in Colorado and several other Western states must litigate clearly untimely discrimination lawsuits, which in the past were summarily dismissed by federal courts for lack of jurisdiction.
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In the ongoing journey towards a possible rewrite of the white-collar exemptions contained in the “Overtime Rule,” the Department of Labor recently announced an upcoming series of listening sessions being held around the country to gather input from all those interested, primarily employers.
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The U.S. Equal Employment Opportunity Commission (“EEOC”) claims that the Home Depot violated the Americans with Disabilities Act (“ADA”), which prohibits disability discrimination in employment and requires employers to provide reasonable accommodations to disabled employees, unless such accommodation would cause an undue hardship. According to the EEOC, the Home Depot refused to allow an employee with irritable bowel syndrome and fibromyalgia a short bathroom break and instead fired her for abandoning her post at a register when she left to use the restroom. The Home Depot denied the allegations, and denied knowing Plaintiff had irritable bowel syndrome, but despite these facts, the EEOC claims that a short break to care for herself and return to work was an ADA reasonable accommodation that the Home Depot could have—and should have—provided to accommodate the employee’s disability.
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California employers must compensate employees for all regularly occurring pre-shift and post-shift tasks that take just a few minutes and are difficult to track, the California Supreme Court recently held.
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U.S. Immigration and Customs Enforcement (“ICE”) is in the midst of a nationwide surge in employer I-9 audits, making good on the agency’s previous pledges to step up workforce enforcement efforts and “create a culture of compliance among employers.”
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The Eleventh Circuit Court of Appeals upheld the dismissal of a Florida truck driver’s religious discrimination lawsuit against his former employer. In Walker v. Indian River Transport Co., a food transportation company assigned a Jehovah’s Witness employee a difficult route that required a flexible schedule and availability to work on Sundays. The driver requested Sundays off to attend religious services, and his employer accommodated the request by pulling him off the difficult route (which required availability to work on Sundays) and offering him alternative but lower-paying routes that did not require Sunday driving. The driver was disappointed with the offer and eventually quit.
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A bipartisan group of U.S. lawmakers have introduced House and Senate bills that seek to further deter workplace sexual harassment by: (1) banning non-disclosure and non-disparagement clauses in employment contracts, and limiting the use of such clauses in settlement agreements; (2) requiring public companies to provide annual reports to the Securities and Exchange Commission disclosing details about workforce harassment settlements and judgments; and (3) establishing a confidential tip line for employees to report harassment to the Equal Employment Opportunity Commission.
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An employee who posted a damning, but stolen, document on Facebook lost the protections of the National Labor Relations Act, under an Advice Memorandum issued by the National Labor Relations Board’s (“NLRB”) Division of Advice.
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