Entries by Bill C. Berger

EEOC issues further guidance authorizing vaccine mandates and vaccine inquiries in the private workplace

The EEOC issued further guidance (Q&A K.1-K.18) updating its previous guidance regarding vaccines, vaccine mandates and vaccine inquiries in the workplace. This new guidance clarifies and confirms that the federal EEO laws overseen by the EEOC (Title VII, ADA, etc.) do not prohibit an employer from Imposing a vaccine mandate as a condition of entry […]

Texas joins Montana in conflict against Biden vaccine mandates

By Executive Order of its Governor, Texas has joined Montana in an on-going conflict against the recent vaccine mandates announced by President Biden. But how direct are these conflicts? While certainly direct enough to ensure significant litigation in both states, there appears to be some room for some form of compliance with the Biden mandates, […]

Great time speaking at Denver Startup Week today!

Thank you #DENStartupWeek for a great time this afternoon speaking on employment law tips and to-do’s for startups! Thank you to the awesome audience members for all your questions and the positive feedback. As Denver Startup Week explains, “Built by the community for the community, Denver Startup Week is a celebration of everything entrepreneurial in […]

CDLE, again, reminds Colorado employers that 80-hour pandemic leave remains in effect

On September 30, 2021, the federal tax credit that allowed employers to pass through the costs of pandemic/80-hour leave.  Also on September 30, 2021, the CDLE reminded, again, Colorado employers in an email that Colorado state law continues to mandate that the 80-hour/pandemic leave (“PHEW” leave) be provided at least until November 15, 2021 while […]

Feds issue further guidance on Biden vaccine mandate for government contractors

the Safer Federal Workforce Task Force has issued further guidance explaining what government contractors can expect as President Biden’s government contractor vaccine mandate is implemented. Highlights of this most recent guidance include the following: As explained in a previous post, the government-contractor mandate’s requirements will be imposed by way of a FAR (Federal Acquisition Regulation) […]

Biden vaccine mandates: What private employers know so far

On 9-9-2021, President Biden announced sweeping vaccine mandates that will affect private employers. So far, what do private employers know to expect? Employers of 100 or more workers will be required to implement vaccine-or-test mandates. Employees who opt not to be vaccinated will be required to be tested weekly. Employees will need to be provided […]

CDLE revises INFO no. 9 regarding Colorado Equal Pay law’s posting requirements

Following up on its recent informal email announcement, the CDLE has revised its Interpretive Notice and Formal Opinion (INFO) no. 9 interpreting Colorado’s Equal Pay for Equal Work Act’s posting requirements. Because the CDLE does not go through formal rulemaking when it issues INFOs, they do not carry the weight of law; however, they the […]

Colorado enacts law enabling private employers to prefer certain candidates on veteran-related grounds

Colorado has enacted CRS 8-1-153 to enable private employers to prefer certain candidates for hiring on the basis of their veteran-related status. Eligible candidates are: A totally disabled veteran who is within 10 years of discharge A less than totally disabled veteran, a member of the reserves or national guard, who is within 5 years […]

Supreme Court rules CFAA is not available in most employment lawsuits involving trade secrets, NDA’s, non-competes and non-solicits

Resolving a long-running split among the lower courts, the Supreme Court has, unfortunately for employers, held that the CFAA (Computer Fraud and Abuse Act) is not available in most lawsuits against current and former employees involving trade secrets, NDA’s, non-competes and non-solicits. The CFAA is a powerful federal law that allows enhanced remedies for companies […]

CDLE reminds Colorado employers that state-mandated paid emergency sick leave is still required so long as federal COVID-19 emergency remains in effect.

In its recent email newsletter, dated 7/23/2021, the CDLE reminded Colorado employers that state-mandated emergency paid sick leave is required, so long as the federal COVID-19 emergency is in effect (and for so long as any subsequent state or local pandemic emergency is in effect). Under the Healthy Families and Workplaces Act (HFWA), Coloradans can […]

Think you’re avoiding Colorado’s new posting-notice requirements by adding a disclaimer that Coloradoans aren’t eligible? Think again, CDLE warns it’s going to start cracking down.

In its most recent email newsletter, dated 7/23/2021, the CDLE warned it is going to start cracking down on employers who are trying to avoid Colorado’s new equal-pay posting and notice requirements by declaring Coloradoans ineligible for the position. Such a disclaimer does not evade the new law’s reach. Equal Pay Transparency – Duty to […]

Vaccine lawsuits rising

Missed my recent webinar on vaccines in the workplace? Email me or send me a message through this website if interested in the complimentary on-demand presentation. In the meantime, check out this article on Law 360 (no subscription required). Interesting topics include a look at some of these new lawsuits, the need to provide certain […]

EEOC updates guidance on LGBTQ+ issues, including transgender restroom access

The EEOC issued updated guidance on LGBTQ+ issues. Although there are reports that some contest the validity of its guidance, the guidance seems, at least on initial review, largely consistent with the EEOC’s prior views and with various state laws, including Colorado’s. The guidance follows on the heels of the Supreme Court’s decision in Bostock […]

EEOC issues new guidance on religious accommodation obligations

The EEOC issued new guidance on religious accommodation obligations imposed by Title VII. The guidance is not regulatory, it was not issued through the formal rulemaking process, and therefore does not enjoy deference in courts, although it is a statement of the EEOC’s opinion of the law for so long as it is in effect. […]

Supreme Court strikes down California’s expansive union access law

The Supreme Court struck down California’s expansive union access law, which had required commercial agricultural property owners to allow unions to come onto their land for up to 3 hours per day 120 days per year in furtherance of organizing campaigns.  The statute went so far as to phrase this as a union’s “right to […]

Colorado Supreme Court holds vacation is a wage due in final paycheck

As noted previously, litigation over vacation payouts has been on-going at the trial court level then the appellate courts, and now finally the Colorado Supreme Court. The issue has been whether, despite various statutory changes to Colorado’s wage laws, vacation is a “wage” that must be paid out in the employee’s final paycheck. More specifically […]

Confused about CDC’s new position for fully vaccinated people and what it means for masks and social distancing in the workplace? Looking for a template memo to your employees?

SHRM has released a couple of interesting memos that HR professionals might consider as a starting point when thinking about the CDC’s new guidance for fully vaccinated people and what it means for masks and social distancing in the workplace. SHRM has released one template memo it suggests for employers looking to allow fully vaccinated […]

As federal, state and local mandates begin to loosen, will employers face a “turnover tsunami”?

According to a recent article in the Denver Business Journal, employers may be facing a “turnover tsunami” with an estimated “26% of workers  plan(ning) to look for a job with a different employer once the threat of the pandemic decreases.” The article offers helpful tips for companies considering how to attract and keep talent.

Tenth Circuit holds employer need not, under ADA, accommodate challenges that an employee’s disability imposes “outside the workplace unrelated to an essential function or a privilege of employment”

The Tenth Circuit recently decided a case involving an employee who required a flexible work schedule to do her job. She suffered from a disability related to her vision. She lived 60 miles from the workplace and relied on family and friends for rides to and from work. Her ability to make it to work […]

American Rescue Plan Act extends and expands federal tax credits available for coronavirus-related leave

SHRM recently published an article summarizing ARPA (the American Rescue Plan Act). In short, employers with fewer than 500 employees currently may but are not required by federal law (compare for example state laws such as in Colorado) to provide paid leave for certain coronavirus-related reasons and, if such an employer does chose to provide […]

CDLE issues an on-demand webinar on Colorado’s new paid leave law known as HFWA

Looking for an overview of Colorado’s new paid leave law known as HFWA (the Healthy Families and Workplaces Act)? To get a better sense of how the CDLE (Colorado Department of Labor and Employment) interprets HFWA? How it will relate to Proposition 118, which will become an entirely new and different paid leave program in […]

NLRB confirms unionized employers may adopt handbook

In Stericycle, Inc., 370 N.L.R.B. No. 89 (2/17/2021), the NLRB held that an employer may adopt and issue handbooks to its workforce, including unionized bargaining unit members, even where that language on its face is contrary to the union’s collective bargaining agreement, so long as it does not purport to apply that inconsistent language to the […]

Seventh Circuit holds that employers may have to provide paid USERRA leave if it provides pay for other comparable leaves

USERRA is the federal military leave law that requires employers to provide workers time-off for military-related leaves. USERRA leave is generally unpaid. However USERRA, sec. 4316(b),  provides that employees must receive “such other rights and benefits not determined by seniority as are generally provided by the employer of the person to employees having similar seniority, […]

Tenth Circuit rejects argument that statutory offer of settlement in Colorado impliedly released other claims much less future lawsuits

Colorado law, CRS 13-17-202, allows defendants in litigation to make what is called a statutory offer of settlement. In a statutory offer of settlement, a defendant in litigation may offer to pay the plaintiff a certain amount in settlement of the claims being litigated, which, if not accepted, the plaintiff must beat at trial, in […]

Tenth Circuit previews likely ruling when employers require return-to-work following pandemic

A recent Tenth Circuit decision previews courts’ likely analysis when employers begin requiring workers to return to the workplace following the eventual end of the pandemic. In the case, the Court held that making a “transitional duty” permanent is not a reasonable accommodation — in other words is not required by the ADA — especially […]

DOL final rules re gig workers and other independent contractors, likely DOA

In an apparently symbolic statement, the DOL issued its long-waited final rule re gig workers and other independent contractors. The rule purports to provide clearer, more pro-business provisions regarding independent contractor classifications. The DOL has summarized its final rule, as follows: In the final rule, the Department: Reaffirms an “economic reality” test to determine whether an individual […]

Colorado wage transparency equal pay requirements, sample job postings?

Effective January 1, 2021, as previously discussed, including in this firm’s recent on-demand complimentary webinar, Colorado employers — and out-of-state employers posting within Colorado even by the Internet — face new requirements that include having to post a good faith range of wages and a general description of benefits in all job opening postings. These […]

DOL updates its Field Assistance Bulletin to confirm that teledoc visits may qualify as medical visits under the FMLA

HR professionals are already well aware that the FMLA is triggered by, among other things, a “serious health condition,” which, oversimplifying, consists of (1) overnight “inpatient care” such as in a hospital, as well as “any period of incapacity” following such inpatient care and (2) “continuing treatment by a health care provider.” The FMLA regulations […]

DOL issues final rule on tip-pooling

The DOL has issued its final rule regarding tip-pooling. The DOL explains its revisions, as follows: In this final rule, the Department: removes the portions of the regulations that prohibited employers that do not take a tip credit from implementing mandatory “nontraditional” tip pools—that is, tip pools that include employees who do not customarily and […]

CDLE issues yet more rules, now confirming the need to provide a fresh 80 hours of pandemic leave starting January 1, 2021

The CDLE has issued a new batch of rules and INFO sheets #6B and #6C confirming the need, in Colorado, to issue a fresh 80 hours of pandemic leave. In other words, an employee who has used, for example, 70 of their current 80 hours, will have their remaining 10 hours zeroed out at the […]

DOL expands religious exemption from EEO laws to federal contractors even if closely-held corporations

Continuing to expand on religious exemptions from EEO laws recognized by both the Supreme Court and itself, the DOL has expanded, in a final rule applicable to federal contractors, the religious exemption to now include even closely-held corporations so long as the company qualifies as a religious organization. To qualify as religious a corporation, association, […]

CDLE issues more new information for Colorado employers

Implementing its most recent batch of rules on a variety of topics, the CDLE just issued yet more information for Colorado employers on those topics. Are your ready for January 1, 2021? Looking for more information about the CDLE’s latest batch of rules? Join us for a complimentary, engaging and interactive webinar. L2S Legal, LLC is […]

CDLE finalizes new WARNING rule

As noted in a prior blog post, the CDLE has finalized a crop of new rules on a variety of topics. This post addresses its WARNING (Whistleblower, Anti-Retaliation, Non-Interference, and Notice-Giving) Rules, effective January 1, 2021.  The WARNING Rules implement Colorado’s new whistleblower and related notice laws. Highlights of the rules include the following: An […]

Colorado Court of Appeals holds, and new COMPS Order 37 confirms, that Colorado state wage laws, like federal wage laws, exempt interstate drivers even if the driver himself does not cross state lines

The Colorado Court of Appeals held that the “interstate driver” exemption in the Colorado state wage laws (including the COMPS Orders), like federal wage law (including FLSA), exempts drivers who transport goods moved in interstate commerce, even if the driver himself only drives the final leg of transport within the state, without himself crossing state […]

CDLE finalizes new rules regarding Colorado’s new paid leave laws

As noted in a prior blog post, the CDLE has finalized a crop of new rules on a variety of topics. This post addresses its Wage Protection Rules, effective January 1, 2021.  The Wage Protection Rules focus on issues related to Colorado’s new paid leave law (HFWA, Health Families and Workplace Act). Highlights of the rules include […]

CDLE issues Equal Pay Transparency rules under Colorado’s Equal Pay for Equal Work Act

As noted in a prior blog post, the CDLE has finalized a crop of new rules on a variety of topics. This post addresses its Equal Pay Transparency Rules, effective January 1, 2021.  The Equal Pay Transparency Rules focus on issues related to Colorado’s new Equal Pay for Equal Work Act (CEPEWA), especially its requirements for […]

Tenth Circuit holds no adverse employment action is required in a failure-to-accommodate case

The Americans with Disabilities Act recognizes several types of claims that a disabled worker might file against their employer. Typically statutory employment claims include a requirement that the plaintiff prove an adverse employment action, meaning that they suffered harm to their employment, such as being discharged, promoted or other material impact on the significant terms […]

EEOC publishes final rule regarding its own ability to issue guidances

The EEOC, like some other administrative agencies, has historically issued what it calls informal guidances as a way of articulating the agency’s position on issues of law without having to go through the formal notice-and-comment rulemaking procedures required of regulations. The legal consequence, and even informal persuasive value, of these guidances is often litigated. On […]

How will Proposition 118’s new paid Family and Medical Leave compare with currently required federal and state paid leave?

As noted on this blog, Colorado voters approved Proposition 118, which will mandate the creation of a new state-administered insurance program to provide paid Family and Medical Leave. As Colorado employers know, the current federal Family and Medical Leave Act (FMLA) does not require paid leave. However, federal law currently does require paid leave in […]

Colorado voters approve Proposition 118 Paid Family and Medical Leave Insurance

Colorado voters approved Proposition 118, the Paid Family and Medical Leave Insurance Act, to be codified at CRS 8-13.3-401, et seq. The Act enhances already required paid leaves at the federal and state level by requiring the State of Colorado to create a new agency capable of administering a paid family and medical leave insurance-based […]

Tenth Circuit tightens up on Title VII claims

In a case titled Sanderson v. Wyoming Highway Patrol, the Tenth Circuit tightened up on a plaintiff’s ability to bring Title VII claims. First, the Tenth Circuit affirmed summary judgment on the plaintiff’s retaliation claim because she had not alleged it in her EEOC Charge of Discrimination. In her EEOC Charge, she’d alleged retaliation after […]

Third Circuit rules at least part of an asset-purchase agreement must be disclosed to union if requested

The Third Circuit recently held in Crozer-Chester Medical Center v. NLRB that at least portions of an asset-purchase agreement must be disclosed to a union representing workers in the seller’s workforce upon request. The seller had announced its intent to be acquired through an asset purchase and, in doing so, advised that workers in the […]

OFCCP clarifies and requests comments on Executive Order 13950 re EEO training by government contractors

On 9/22/2020 President Trump issued Executive Order 13950, which appears to prohibit government contractors who are subject to Executive Order 11246 (OFCCP jurisdiction) from undertaking EEO training that, merely reading the order on its face, might possibly even implicit bias trainings. In today’s Federal Register, 85 FR 67375, the OFCCP initiated rulemaking under the new […]

DOL reaffirms its FFCRA leave regulations following New York court ruling

Following a New York federal court’s ruling that struck portions of the DOL’s recent regulations governing FFCRA leave, the DOL has issued further rulemaking with expanded explanations. The new rulemaking largely reaffirms the prior regulations, including the specific rules struck by the New York court, but modifies the DOL’s prior rules regarding the FFCRA’s exclusion […]

“Vertical” component of DOL Joint Employer rule struck

A New York court has struck the “vertical” component of the DOL’s recent Joint Employer rule, ruling it is invalid as “arbitrary and capricious.” To be clear, the Department’s justifications for engaging in rulemaking are valid. Promoting uniformity and clarity given the (at least superficially) [parenthetical in original] widely divergent tests for joint employer liability […]

The EEOC has limited its own authority to file “pattern or practice” lawsuits

The EEOC has formally acknowledged its own limitations on its authority to bring a “pattern or practice” lawsuit against an employer. When the EEOC brings such a lawsuit, it is not acting in a representative capacity on behalf of any particular employees (as it does in a so-called sec. 706 claim, citing Title VII’s relevant […]

Apple must pay for mandatory post-shift searches, Ninth Circuit holds

The Ninth Circuit has held that time spent in a mandatory post-shift search constitutes “hours worked” that must be paid under the Fair Labor Standards Act. The case was filed against Apple, which argued the time should not be compensable, especially in a class (collective) action, because the employees only needed to go through the […]

Ninth Circuit holds Amazon drivers are not required to arbitrate

Following on the Third Circuit‘s ruling that gig-economy drivers, like those for Uber and Lyft, are not required to arbitrate, the Ninth Circuit held that so-called final mile drivers for Amazon, who deliver products from Amazon warehouses to their final destination also fall into the interstate transportation exception and therefore are not required to arbitrate. […]

“Paid Sick Leave Gaps Draw States’ Attention as Virus Persists”

State and local governments in at least 12 states (Washington, Oregon, California, Nevada, Arizona, Colorado, Michigan, Pennsylvania, New York, New Jersey, District of Columbia, Massachusetts) have or are in the process of enacting new emergency sick leave laws, which either supplement coverage of existing federal coronavirus-related leave rights and/or implements all new general sickleave requirements, […]

New York judge strikes three portions of DOL regulations re FFCRA leave

A New York federal trial court has struck three portions of the DOL regulations implementing the FFCRA’s emergency paid sick leave. The State of New York challenged and the trial court struck these three portions of the DOL regulations: A requirement that emergency paid sick leave is available only if the employer has work available; […]

CDC shifts to symptoms-based not test-based recommendations for employers

The CDC has shifted from a test-based approach to now recommending employers follow a symptoms-based approach for its workers. As a general rule, the CDC cautions employers not to require employees to take coronavirus tests and should not require employees to provide a doctor’s note to validate the need for sick leave or the ability […]

Bill Berger, Labor Lawyer on PAC-12 Players’ Boycott | KOA NewsRadio 850 AM & 94.1 FM | Logan & Lewis

Great time this morning on KOA NewsRadio with Dave Logan, Rick Lewis and Kathy Lee talking about the legal issues re #pac12 #pac12fb and the players demands for social justice and coronavirus reforms. Source: Bill Berger, Labor Lawyer on PAC-12 Players’ Boycott | KOA NewsRadio 850 AM & 94.1 FM | Logan & Lewis — […]

“Colorado employers continue to lose vast majority of cases to compel workers back on the job,” reports Denver Business Journal

As noted in prior blog posts, Colorado employers have been, and now continue to be, held liable for unemployment benefits in bulk of unemployment claims, despite calls to return to work. “It has held remarkably steady between 16% and 18%,” Fitzgerald said of the total number of decisions that have gone for employers over the […]

Governor Polis signs Colorado sick leave laws into effect, requiring IMMEDIATE action by employers

Governor Polis has signed two laws into effect. The Healthy Families and Workplaces Act (HFWA) The Public Health Emergency Whistleblower Law (PHEW) The Colorado Department of Labor and Employment (CDLE) has issued summaries of each law (which it calls INFOs). INFO 5 (Spanish translation of INFO #5) summarizing PHEW. INFO 6A (Spanish translation of INFO #6A) summarizing […]

Supreme Court reinforces anti-discrimination law’s ministerial exemption

In a 7-2 decision, the Supreme Court upheld religious elementary schools’ ability to otherwise-discriminate against teachers under the “ministerial” exemption. Title VII, the ADEA and other anti-discrimination laws recognize a ministerial exemption, consistent with the First Amendment, that permits a synagogue, for example, to require that its rabbi actually be Jewish and that she adhere […]

Supreme Court expands religious exemption from Obamacare contraceptive requirements to private employers

When passed, so-called “Obamacare” contained exemptions from its contraceptive-coverage requirements for religious organizations and other non-profits that hold sincerely held religious objections. Following a series of regulatory developments and judicial decisions, eventually, by 2018, the Trump Administration expanded the exemptions to include private employers, including even publicly traded companies, and secular universities, even with regard […]

EEOC expands mediation and conciliation opportunities

The EEOC has increased the mediation and conciliation opportunities available to employers as part of its charge-handling procedures. Mediation is the process employers are most familiar with. Some, but not all, charges are automatically eligible for mediation when a charge is filed with the EEOC. Employers will have noticed receiving a written offer to mediate […]

EEOC confirms coronavirus antibody testing not permitted as part of return-to-workplace program, although active-virus testing may be permitted

The EEOC updated its FAQ guidance with Q&A no. A7, advising that an employer may not require coronavirus antibody testing (which is the blood test done to see if the person’s blood suggests they were previously exposed to the virus sufficient to create antibodies) as part of a company’s return-to-workplace program. However the EEOC advised […]

OSHA issues updated FAQ confirming cloth face coverings and general masks worn re coronavirus are not PPE

OSHA issued an updated FAQ re cloth face coverings and the kind of masks commonly worn regarding coronavirus (called “surgical” masks by OSHA, as distinguished from what it calls “respirators (e.g., filtering face pieces)”). OSHA explains that cloth face coverings are worn, not to protect the wearer, but to reduce the expression of virus by […]

Arbitration agreement held enforceable despite impossibility of complying with governing-rules language

The Colorado Court of Appeals recently held that an arbitration agreement is enforceable even if complying with its governing-rules language is impossible. In the case, the parties entered into an arbitration agreement calling for any dispute to be governed by the rules of a particular arbitration company. One of those rules was that only that […]

SCOTUS holds LGBTQ status is protected within Title VII’s meaning of “sex”

The Supreme Court held that LGBTQ status is already protected within Title VII’s meaning of the word “sex.” Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or […]

OSHA believes some employers have a duty to investigate work-relatedness of coronavirus cases

If an employee tests positive, does an employer have an obligation to investigate whether it is “work-related”? OSHA thinks so, now, but investigating and determining “work-relatedness” may not be as easy — or as lawful — as OSHA believes. OSHA issued a revised enforcement guidance that now imposes on some employers a duty to investigate […]

PPPFA grants greater flexibility for PPP loan borrowers

Congress passed and President Trump signed the PPPFA (Paycheck Protection Program Flexibility Act), which grants greater flexibility for PPP loan borrowers. Among its changes, the PPPFA Reduces the required ratio of loan usage on payroll from 75% to 60% Permits loan funds to be used over a 24- not 8-week covered period Extends the deadline […]

Coronavirus-safety lawsuits against employers begin

Employees have begun filing lawsuits against their employers alleging inadequate safety measures in place to protect against coronavirus. So far, two lawsuits have reached an initial-decision stage: Rural Community Workers Alliance v. Smithfield Foods, Inc., case no. 5:20-CV-06063-DGK. See Order Granting Defendant’s Motion to Dismiss dated 5-5-2020. Massey v. McDonald’s, case no. 2020CH04247. See initial […]

Colorado unemployment agency continues trend of ruling in favor of workers who decline to return to work

A previous post addressed the requirement that workers return to work — or face loss of unemployment — when an offer to return (to comparable work) is extended, unless the worker is a “vulnerable individual” or otherwise unable to return due to coronavirus-related reasons. As noted there, the initial report was that the state was […]

Supreme Court reaffirms importance of “but-for” analysis in certain kinds of discrimination claims against private employers

An on-going issue in litigation is frequently the standard of causation and whether a plaintiff’s allegations and evidence are established to meet it. One of the more strict standards is the “but-for” test, meaning a plaintiff must show that the adverse employment action (such as termination or refusal to hire) would not have occurred “but […]

DOL expands availability of overtime exemption for commissioned-employees working for a “retail or service establishment”

The nation’s leading wage-hour law (FLSA, the Fair Labor Standards Act) has long recognized an exemption from overtime for employees who work on a commission. However, the exemption is only available if the employee is working for a “retail or service establishment.” To be a “retail or service establishment” the company “(a) (m)ust engage in […]

Considering a voluntary internal audit to prepare for Colorado’s new equal pay law?

Last year I co-authored an article for the Colorado Lawyer about Colorado’s new equal pay law (the Colorado Equal Pay for Equal Work Act, “CEPEWA”), with two of CEPEWA’s drafters, Sarah Parady and Charlotte Sweeney. CEPEWA will take effect January 1, 2021. In our article, we noted that CEPEWA “CEPEWA does not grandfather current pay […]

NLRB amends and republishes its final rule “to protect employee free choice”

As previously posted on this blog, the NLRB issued a final rule “to protect employee free choice” altering its approach to blocking charges, voluntary recognition and construction industry (section 9(a)) voluntary recognition. The Board has amended and republished its final rule. The Board explained its final rule, including the amendments, as follows: Blocking Charge Policy: […]

EEOC updates Q&A, specifically re employees with an underlying disability that puts them at “higher risk” re coronavirus

The EEOC updated its prior Q&A re coronavirus, adding three questions (numbered G3-G5) to address the needs of employees who already suffer from an underlying disability that, now, puts them at “higher risk” related to coronavirus. First in questions G3-G4, the EEOC advises that an employer is obligated to consider whether a reasonable accommodation exists […]

Colorado unemployment disputes skyrocket as employers begin to offer returns to work that employees decline, with CDLE at least initially tending to rule for workers

As previously posted on this blog, the Colorado Department of Labor and Employment Unemployment created a new portal for employers to use to report when an employee refuses after being offered to return to work; the refusal will generally render the individual ineligible for further unemployment, unless the individual can prove they are “vulnerable” and […]

Looking for a short primer on which expenses are forgivable and how to maximize the forgiveness of a PPP loan?

Here’s a handy short primer on PPP loans, discussing which expenses are forgivable and steps employers can take to maximize the forgiveness of a PPP loan. Which Paycheck Protection Program Expenses Are Eligible for Forgiveness? — Read on www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/Paycheck-Protection-Program-Expense-Forgiveness.aspx

Trying to prepare your EEO-1 data filing in the midst of coronavirus pandemic? FYI, the EEOC just delayed EEO-1 data collection for 2020 due to coronavirus

The EEOC has delayed EEO-1 data collection for 2020 until 2021 due to coronavirus. In its press release, the EEOC explained the delay, as follows: The EEOC recognizes the impact that the current public health emergency is having on workplaces across America and the challenges that both employers and employees alike are now facing. Filers […]

DOL issues new model COBRA notices to address growing wave of litigation

The DOL has issued a new set of model COBRA notices that may be used to comply with COBRA’s requirements, along with a set of explanatory Q&A’s. The DOL’s model COBRA forms are not required to be used, they are intended to reduce litigation exposure by helping to “to ensure that qualified beneficiaries better understand […]

California sues Uber and Lyft alleging driver misclassification

In furtherance of California’s AB 5, the State of California has sued Uber and Lyft, seeking to re-characterize their drivers as employees, not independent contractors. The State summarized its case in the introductory paragraphs of its Complaint, as follows: 5. Uber and Lyft are transportation companies in the business of selling rides to customers, and […]

OSHA publishes guidance for employers on how to establish a safe workplace in the coronavirus pandemic

As essential industries struggle to stay open and as more and more companies look to reopen, OSHA has published a “Guidance for Preparing Workplaces for Coronavirus.” The guidance provides specific recommendations for workplace structuring, cleaning, protective equipment, etc., broken down for different kinds of jobs, based on their risk of exposure to coronavirus. Employers will […]

Colorado Unemployment releases website to report an employee’s refusal to return to work

In Colorado, Governor Polis’ safer-at-home order remains in effect but permits certain employers to begin reopening subject to certain conditions at various times. What if an employer decides to reopen in accordance with that order, but an employee feels they would be “safer at home,” may that employee decline an offer to return to work […]

Colorado Court of Appeals issues strong ruling on “horizontal veil piercing”

The Colorado Court of Appeals issued a strong decision involving “horizontal veil piercing.” The case involved a junior creditor suing his debtor and its senior creditor, alleging that the debtor and senior creditor were commonly owned. The debtor was owned in large part (81.25%) by the same five owners who owned 100% of a third […]

Colorado joins California, New York, New Jersey and Virginia by banning discrimination on the basis of hairstyles

Colorado will be adding to the list of protected classes against which discrimination is prohibited “hair texture, hair type, or a protective hairstyle that is commonly or historically associated with race.” Because the current legislative session has been extended due to the on-going coronavirus events, we do not know the precise date when this new […]

Wondering why the new coronavirus-related unemployment compensation (CARES Act unemployment benefits) are taking so long?

Visitors to Colorado’s unemployment page at the Colorado Department of Labor and Employment will see this update regarding the status of the new coronavirus-related unemployment benefits that will be available under the CARES Act: Update as of April 12, 2020: We are still programming our systems to begin accepting claims for workers who are eligible […]

Documentation and forms for requesting FFCRA coronavirus-related sick leave and coronavirus-related FMLA leave

In a prior post, it was noted that the DOL had issued its final rules regulating the FFCRA. As explained there, the DOL regulations summarize the documentation that employers should keep for coronavirus-sick and coronavirus-FMLA leave granted under the FFCRA. →Reminder: FFCRA-covered employers are reminded that in addition to this required documentation, they must have […]

NLRB published final rule revising employee representation procedures

The NLRB issued a final rule making “three amendments to its rules and regulations governing the filing and processing of petitions for a Board-conducted representation election and proof of majority support in construction-industry collective-bargaining relationships.” The Board has summarized the amendments to its regulations as follows: Blocking Charge Policy: The amendment replaces the current blocking […]