Entries by Bill C. Berger

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 […]

DOL issues regulations under the FFCRA regarding newly mandated coronavirus sick- and FMLA- leave

The DOL has issued regulations implementing the FFCRA’s newly mandated coronavirus sick- and FMLA-leave. The regulations address many topics, including the following highlights. Look for additional information as the new regulations are analyzed. The definition of “Telework,” which includes the statement that an employee is not “able to Telework” if there are any “extenuating circumstances […]

Midsized businesses applying for certain loan under the CARES Act should be aware that terms may include a union-neutrality obligation for the term of the loan

Companies employing 500-10,000 workers should be aware, when considering loans under the CARES Act that sec. 4003(c)(3)(D)(I)(X) will require, as a term of that loan, that they “remain neutral in any union organizing effort for the term of the loan.” That language (emphasis added) reads, as follows: (D) Assistance for mid-sized businesses.– (i) In general.–Without […]

BREAKING NEWS: DOL has issued the poster REQUIRED to be “posted” re coronavirus sick-/FMLA- leave

Employers who are subject to the new FFCRA (Families First Coronavirus Response Act) sick-/FMLA- leave are required to post a poster by the FFCRA’s effective date, April 1, 2020. The EEOC has just issued the required poster along with a Q&A that answers common questions employers will have regarding the same, including explaining that, where […]

DOL issues enforcement guidance urging staff to recognize a “temporary non-enforcement period” for “reasonable” and “good faith” compliance

The DOL issued Field Assistance Bulletin no. 2020-1 urging its staff to recognize a “temporary non-enforcement period” for employers who are in “reasonable” and “good faith” compliance. To qualify for the benefit of this “non-enforcement period,” the employer must establish all of the following: The employer remedies any violations, including by making all affected employees […]

EEOC publishes YouTube webinar on ADA, Rehabilitation Act and coronavirus

The EEOC published a short 42-minute YouTube video on the ADA, Rehabilitation Act and coronavirus.  The webinar fleshes out the EEOC’s recent coronavirus guidance and identifies certain questions that it believes it is currently unable to answer, including the following: Whether coronavirus (COVID-19) is or could be a disability protected by the ADA? Questions addressed […]

CDLE issues revised Wage Protection Act Rules

On March 16, 2020, the Colorado Department of Labor and Employment (CDLE) issued amendments, effective that same day, to its prior Wage Protection Act Rules. The amendments added language that articulated the CDLE’s opinion that Colorado state law on the Joint Employer doctrine is and, in its opinion, has always been contrary to federal law.

COMPS Order 36 takes effect with some changes

Colorado Overtime and Minimum Pay Standards (COMPS) Order 36 took effect March 16, 2020 with some revisions and additional commentary by the Colorado Department of Labor and Employment. First, in another Statement of Basis, Purpose, Specific Statutory Authority, and Findings for Adoption as Temporary or Emergency Rules, the CDLE issued a multi-page detailed explanation of […]

Common questions re WARN versus coronavirus

Thinking about layoffs, furloughs or reductions of hours? Wondering about the WARN Act’s 60-day notice requirements? Bloomberg BNA published a handy article discussing some of the common questions about the WARN Act and coronavirus layoffs, furloughs and hour-reductions. Source: The WARN Act: Top Coronavirus Questions Answered by Lawyers — Read on www.bloomberglaw.com/exp/eyJjdHh0IjoiRExOVyIsImlkIjoiMDAwMDAxNzEtMTI4NS1kMDlhLWEzNzMtOWE5N2ZiMTYwMDAwIiwic2lnIjoiODFXQlVIQjIzU3pRUnB1TzJaTHlLL3BXU0NJPSIsInRpbWUiOiIxNTg1MTYyNTE0IiwidXVpZCI6IkVuY0FVQkNZUnhxcjlOQ3AreU4xVHc9PWcwRnZ1MHVUMUNNQnQzbnEzMXcxRkE9PSIsInYiOiIxIn0=

BREAKING NEWS: Gov. Polis orders in-person Colorado workforce reduction of 50% – Denver Business Journal

The Governor’s order is not yet available, but the Denver Business Journal is reporting that “The order does not apply to critical, 24-hour businesses like health care, manufacturing, agriculture and public services such as trash collection and mail delivery.” In his press conference Governor Polis stated verbally the order will take effect Tuesday March 24, […]

IRS begins clarifying how employers can recoup coronavirus-related leave expenditures

As previously posted, Congress enacted this week two new forms of coronavirus-related leave: sick leave and coronavirus-FMLA leave. Today, 3-20-2020, the IRS issued a memo beginning to explain how employers will be able to recoup expenses for the same and advising that further explanation will be forthcoming next week: When employers pay their employees, they […]

DOL relaxes normal I-9 processes for businesses affected by coronavirus-absences/teleworking

Normally an employer must review actual physical documents to complete a new hire’s I-9. SHRM has published this article explaining the DOL’s announcement that, for businesses where that is impossible because workers are absent and/or teleworking, that requirement will be relaxed to permit remote review of such documents, retention of same, then review physically when […]

Stay-at-home orders and Essential Industry employers

The Cybersecurity and Infrastructure Security Agency (CISA) of the U.S. Department of Homeland Security has issued a memo identifying 16 industries as “essential critical infrasture.” Chemical Communications Commercial facilities Critical manufacturing Dams Defense industrial base Emergency services Energy Financial Food & agriculture Government facilities Healthcare & public health Information technology Nuclear reactors, materials & waste […]

Reminder: DOL Fact Sheet #70 re furloughs

Employers who are considering furloughs are reminded to consider DOL Fact Sheet #70 regarding federal wage-hour issues, in addition to related state wage-hour issues, such as under new COMPS Order 36. Of course, wage-hour issues are only some of the issues to be considered. Additional issues include possible WARN Act notices and benefits-related questions. Any […]

BREAKING NEWS: Colorado Department of Labor and Employment issues paid-sick leave rule regarding coronavirus testing

According to a verbally issued executive order by Colorado Governor Polis, the Colorado Department of Labor and Employment has issued a rule (the “Colorado HELP” rule, aka the Colorado Health Emergency Leave with Pay rule) requiring certain employers to provide up to 4 days of paid leave for employees awaiting a coronavirus test result. Rule […]

BREAKING NEWS: COMPS Order 36

The Colorado Division of Labor and Employment has just advised as follows: The Division has posted the Colorado Overtime & Minimum Pay Standards (COMPS) Order #36  Poster on our COMPS Order #36 – Informational Page. This is the “Poster” to use to comply with the “Posting and Distribution Requirements” COMPS Rule 7.4. As a reminder, Colorado Overtime and Minimum Pay […]

Restaurants and other employers with tipped employees, beware relying on DOL opinion letter

As previously posted, the DOL issued an opinion letter in 2019, purporting to jettison the Obama Administration’s 80-20 rule and expanding the ability to claim tip credits for tipped employees, specifically, during time when they do not earn tips (example, while wait staff vacuum and clean). Bloomberg BNA reports that opinion letter has met with […]

COMPS Order 36, SOME of what you need to know

As previously posted here, the Colorado Division of Labor and Employment has issued its COMPS Order no. 36. Here’s some of what you need to know: It probably applies to your company. As previously explained, Colorado Wage Orders have historically been limited to certain industries, now their successor, this “COMPS Order” is generally applicable to all employers with only […]

The new I-9 form is here!

Ok, maybe it’s not that exciting, but still the DOL has released its new I-9 form. It will be mandatory May 1, 2020. It can be found here, with its various other forms and versions. SHRM’s article, if readers are interested, re same, can be found here. Thank you as always to SHRM for great […]

EEOC Harassment Charges Reflect #MeToo’s Relevance

Interesting article from SHRM on post- #MeToo statistics at EEOC for sexual harassment charges. On the one hand, there still has not been a flood of sexual harassment charges. In fact, their number remains lower than pre- #MeToo 2010-13 numbers but are slowly climbing back from their post- #MeToo 2014-17 dips. The number of sexual-harassment […]

DOL releases final joint employer rule

The DOL has issued a final rule regarding the Joint Employer doctrine. Analysis of a joint employer issues under the Fair Labor Standards Act (FLSA), the DOL rule says, should start — and will generally end — with the following non-exclusive four factors (quoting the summary in the DOL’s Fact Sheet regarding its new rule): […]

NLRB returns to its historical standard for deferring to arbitration both before and after the arbitral award

The NLRB has reversed its 2014 Babcock & Wilcox standard for deciding when the Board will defer to arbitration, both before (“pre-arbitral” deferrals) and after (“post-“) the arbitration itself has occurred. Now the burden is on the party resisting deferral (typically a union) not the party urging deferral (typically an employer), and the question is only whether […]

NLRB returns to permitting employers to cease dues check-off collections during negotiations

Reversing its Obama-era decision, the Board has returned to its longstanding precedent of permitting employers to stop withholding dues, even as may have been required by a dues check-off clause in a collective bargaining agreement, once that agreement expires and the parties enter renewal negotiations. In sum, we find that a dues-checkoff provision properly belongs […]

NLRB reverses course on its expedited election rules

Effective April 16, 2020, the Board will jettison its 2014 expedited election rules. The expedited election rules were highly controversial and nicknamed, depending on the speaker’s perspective, either “quickie” or “ambush” election rules. The highly accelerated election period was intended to limit (or, depending on the speaker’s perspective, curtail) the ability of employer’s to speak […]

In another reversal, NLRB holds employers can issue so-called “gag orders” to protect the confidentiality of workplace investigations

The NLRB has ruled that employers can issue so-called “gag orders” to protect the confidentiality of workplace investigations. A typical “gag order” would be an instruction by the company to employees (and other witnesses) not to discuss matters relevant to an on-going investigation. The decision triggered a heated dissent from one Board member who argued […]

NLRB reverses course and holds employers can control emails

In a reversal of its Purple Communications decision, the NLRB held that employers can maintain sole control over their email and computer systems. Employers need not allow workers much less third parties like unions access to their email systems to, for example, further union organizing, collective bargaining, grievance administration or other non-work purposes. (E)mployees have no statutory […]

Expert testimony not required to prove a “disability,” some of the times

The Tenth Circuit held that a plaintiff doesn’t always need to have a medical expert to confirm the plaintiff’s medical condition rises to the level of a “disability” protected by the Americans with Disabilities Act. When is a medical expert required? “(W)]here injuries complained of are of such character as to require skilled and professional […]

Colorado Court of Appeals clarifies unemployment eligibility rules related to marijuana use

The Colorado Court of Appeals has clarified how Colorado’s medical and recreational marijuana laws impact eligibility for unemployment. The case involved an unusual fact pattern that provided the court with a springboard to articulate four rules. The worker was on medical leave, but worked for a financial institution to which he personally owed money. Although […]

DOL issues proposed rule re tip-pooling

In a November 2019 opinion letter the DOL reversed position on tip-pooling. As explained there, the DOL lifted the Obama-era DOL’s 80-20 rule, making it easier for employers (like restaurants) to pool tips among tipped employees, including even those who perform some non-tipped work during their day (like waiters who vacuum, set up and clean up […]

President Trump limits informal agency guidances

Federal law requires administrative agencies to go through a rulemaking process before implementing regulations. To avoid that process, agencies have increasingly begun using informal “guidances,” often issued in the form of memorandums, letters and bulletins. By two Executive Orders, the President has ordered administrative agencies, among other things, to include in any such document a […]

Third Circuit rejects Uber’s ability to enforce arbitration agreement with its drivers

Applying the Supreme Court’s recent Oliveira decision, the Third Circuit held that Uber cannot enforce its arbitration agreement with drivers engaged in interstate commerce. In doing so, the Court held that the exception in federal law that prohibits arbitration agreements for drivers engaged in interstate commerce applies not only to drivers who transport goods but also drivers […]

California attempts to ban mandatory (even opt-out voluntary) pre-dispute arbitration agreements

On October 10, 2019, the Governor of California signed into effect California’s AB 51, which bans mandatory pre-dispute arbitration agreements. This new law continues California’s struggle to find a way to limit pre-dispute arbitration, in direct conflict with the Supreme Court’s recent cases upholding such arbitration. AB 51 prohibits even otherwise-voluntary pre-dispute arbitration agreements are […]

NLRB loosens restrictions on an employer’s ability to modify wages, hours and working conditions during the term of a CBA

Historically the Board has permitted an employer to change wages, hours and working conditions during the term of a CBA if it can prove a “clear and unmistakable waiver” by the union permitting the change. An example of a “clear and unmistakable waiver” would be contract language expressly authorizing a company to modify the cost […]

A union that isn’t a union? The New York Times on the growing presence of “solidarity unions”

Interesting lunchtime read today for HR and labor-employment law professionals, in the New York Times. The article discusses the growing presence of non-union unions called “solidarity unions,” especially in the tech industry. These groups are simply informal associations of two or more workers in a workplace. The article is a good reminder for employers that, […]

NLRB reverses micro-unit rule

The NLRB has reversed its 2011 Specialty Healthcare decision, which in turn reversed its 2017 PCC Structurals decision, meaning the NLRB will no longer permit a union to try to organize only a sliver of a workforce (a so-called “micro-unit”). Now an employer (or workers) may defeat a union’s effort to organize a micro-unit by proving […]

NLRB permits employers to eject non-employee union agents from their property

Reversing a 1999 decision, Sandusky Mall Co., the Board upheld an employer’s right to eject non-employee union agents from its premises, even though it had routinely granted other non-employees’ permission to solicit on the same premises for “civic, charitable and promotional activities.” In doing so the Board held that a union’s presence to solicit customers to […]

DOL releases final overtime rule

The DOL has released the final overtime rule that has been discussed as far back as the Obama Administration. As anticipated, the new rule includes multiple changes to current overtime laws, including increases to the minimum guaranteed salaries for most overtime exemptions, an increase to the minimum requirement for so-called “highly compensated” employees, and permitting […]

NLRB implements Supreme Court’s 2018 decision on arbitration agreements

In 2018, the Supreme Court rejected, in a decision titled Epic Systems Corp. v. Lewis, the argument that Section 7 of the National Labor Relations Act’s protections for protected concerted activity somehow encompass a right to file class action and collective action lawsuits. There the Supreme Court held that, accordingly, employers can require pre-dispute arbitration agreements, […]

Colorado trial courts are not required to blue-pencil non-compete and non-solicit covenants

Even where an agreement says that covenants “shall be” blue-penciled (meaning, rewritten if determined to be unenforceable and narrowed to whatever the court rules would have been enforceable), a trial court in Colorado is not required to do so. In a recent decision, 23 LTD v. Herman, case no. 16CA1095 (Colo.App. 7/25/19), the Colorado Court […]

Three issues in Colorado regarding vacation pay

Colorado law, CRS 8-4-101 defines vacation to be a part of “wages” when “earned in accordance with the terms of any agreement. If an employer provides paid vacation for an employee, the employer shall pay upon separation from employment all vacation pay earned and determinable in accordance with the terms of any agreement between the […]

Supreme Court rules arbitrator should, depending on language, decide arbitrability, but Colorado law might say otherwise?

Earlier this year, the Supreme Court held, in Henry Schein, Inc. v. Archer and White Sales, Inc., held that, depending on the language of the parties’ arbitration agreement, it is for an arbitrator, not a judge in court, to decide questions of arbitrability. The decision involved relatively common language saying, “Any dispute arising under o […]

Colorado criminalizes wage theft

Effective January 1, 2020, Colorado has criminalized wage thefts. This new law applies to “employers,” a term defined to be commensurate with the Fair Labor Standards Act’s coverage, and protects “employees,” as defined to exclude independent contractors. Under this new law it will be a crime to: willfully refuse to pay or “falsely” deny “the […]

EEOC releases additional information for filing EEO-1 pay information for 2017 and 2018 — reminder, the deadline is September 30, 2019

Employers are reminded that the deadline for filing EE0-1 Component 2 information for 2017 and 2018 is September 30, 2019. As a follow-up to the EEOC’s recent information for doing so, the EEOC has released additional information and resources on its EEO-1 website and on the website of EEOC’s contractor. There, employers can find a […]

Reminder, Colorado employers, new ban-the-box law will take effect soon

Colorado employers are reminded that Colorado’s new ban-the-box law will take effect September 1, 2019 for employers with more than 10 employees (then September 1, 20121 for all other employers). Together with the crop of other new Colorado employment laws this year, Colorado employers should: Review and revise their handbooks, workplace policies, and hiring documents […]

Courts are limited to granting relief that will personally benefit plaintiff

The Eleventh Circuit held that courts are limited, in Title VII cases (the federal statute that governs most discrimination and retaliation cases, including related to race, color, religion and sex), to granting relief that personally benefits the plaintiff. In this case, the plaintiff a former employee proved a violation but no damages. Instead, the trial […]

NLRB reverses 38-year old precedent regarding property access rights of union organizers

Reversing its 1981 president, Montgomery Ward, the NL RB recently held that non-employee union representatives can be banned from public spaces within an employer’s property, such as cafeterias, if they engage in organizing activities in those areas. The decision signals an equally pro-employer approach will be adopted with regard to the Board’s 2014 decision, Purple […]

Colorado Supreme Court holds referral service to be an employer, striking independent contractor classification

In contrast with the Trump Administration’s approach to so-called gig-economy cases, the Colorado Supreme Court recently struck one company’s attempt to classify its workers as independent contractors, not employees. At the federal level, the Trump Administration has, through both the NLRB and DOL, recently held that (at least some) gig-economy companies, like Uber in particular, […]

Colorado’s workers compensation requirement might be unconstitutional, at least in part?

An interesting case is winding its way through the Colorado courts. In Colorado employers of three or more must carry workers compensation insurance. In this case, the employer employed typically between two and four individuals. It failed to carry workers compensation insurance for three different periods of time. When that came to the attention of […]

Adjusting to Pay-History Bans

HR professionals trying to adjust to the growing number of pay-history bans may want to review this interesting article from SHRM. As SHRM notes 15 states have already adopted pay-history bans. One approach the article discusses could be “complete compensation transparency” where the employer posts not only the opening, but also the pay range, job […]

Supreme Court sides with Tenth Circuit, resolving split in Circuits, holding failure-to-exhaust is a procedural affirmative defense, not a jurisdictional defect

Resolving a split among the Circuits, the Supreme Court sided with the Tenth Circuit‘s recent approach, ruling that an employee’s failure to exhaust the statutory prerequisites for filing claims of discrimination and most kinds of EEO (equal employment opportunity), i.e., Title VII claims, is a procedural affirmative defense, not a jurisdictional defect. This means the […]

Gov. Polis signs three new Colorado laws into effect

The Denver Business Journal is reporting that Colorado Governor Polis has signed three new Colorado laws into effect. As the DBJ reports, each came with some opposition and will have impacts on employers in Colorado. Gov. Jared Polis on Monday signed a trio of bills that he said will improve the fortunes of working-class Coloradans […]

Tenth Circuit holds plaintiff’s case insufficient even though supervisor kept a special file on the plaintiff in case he some day decided to “pull the race card”

The Tenth Circuit held a plaintiff failed to establish a case worthy of trial, entering summary judgment for lack of evidence of discrimination, even though the plaintiff submitted evidence his supervisor had kept a special file on him because, plaintiff contends the supervisor admitted, he feared plaintiff would some day “pull the race card.” The […]

Supreme Court reaffirms its ruling on arbitration agreements as bars to class actions, begins chipping away at state laws to the contrary

The Supreme Court reaffirmed its recent ruling in Epic Resources that arbitration agreements, even mandatory pre-dispute arbitration agreements, bar class actions, even when silent on the subject. In doing so, the Supreme Court declined to adopt a standard that would have required such agreements to “clearly and unmistakably” permit class actions, ensuring the issue of just how […]

DOL proposes overhaul of Joint Employer rules

Following up on recent efforts by the NLRB to overhaul the Joint Employer doctrine, the DOL has proposed its own revisions. Like the NLRB, the DOL proposes that the right to control not be considered, but rather that focus be on whether the putative joint employer actually has exercised control. Only actions taken with respect to the employee’s terms […]

Employers should begin preparing to turn over EEO-1 pay data by September 30, 2019, details to follow from EEOC shortly

A federal trial court judge in the District of Columbia cleared the path for the EEOC controversial rule requiring employers to turn over two years of pay data by September 30, 2019. The court’s order follows a recent decision in which the judge provided further reasoning. In short the court held that, in this battle […]

New Jersey Adds And Expands On State Laws Banning Non-Disclosure Provisions

Following up on developments in California and New York, as well as under the federal tax code, New Jersey has banned nondisclosure provisions, a/k/a confidentiality provisions, in agreements, including employment agreements and settlement agreements, that would prohibit disclosure of allegations related not only to sexual harassment but also discrimination, retaliation and other forms of prohibited […]

DOL confirms that employers may claim tip credit even for time tipped employees spend on non-tipped work

Confirming an approach announced in a recent opinion letter, the DOL has amended its Field Handbook, the manual for its enforcement personnel, that employers (like restaurants) may claim a tip credit for time that tipped employees spend on non-tipped work (such as a waiter who may vacuum) if performed contemporaneously (or nearly so) with tipped […]

OSHA’s final recordkeeping rule confirms, among other things, post-accident drug testing does not constitute retaliation

OHSA issued a final rule regarding recordkeeping, which, among other things, confirms its position that, contrary to a 2016 Obama-era rule, post-accident drug testing does not constitute prohibited retaliation. In response to concerns about the application of the 2016 final rule to employee drug testing and incident- based incentive programs, OSHA notes that the employee […]

DC Circuit affirms NLRB’s ruling that off-duty employees have protected right to picket near hospital entrance

Historically labor practitioners (and the NLRB and the courts) have analyzed picketing versus handbilling differently. As a general rule, handbilling (i.e., the distribution of literature) has been allowed in many circumstances where picketing (the holding of a picket sign) is not. For example, in hospitals, since the Board’s 1945 Republic Aviation decision, handbilling, like solicitation […]

DOL proposes to overhaul its overtime rules

The Department of Labor issued the much anticipated proposed revisions to its overtime regulations. Proposed Increase To Minimum Guaranteed Salary For Exempt Employees The proposals will increase the minimum guaranteed salary that (most) exempt employees must receive from $455 per week ($23,600 per year) to $679 per week ($35,308 per year). The DOL anticipates this […]

Pennsylvania Supreme Court recognizes negligence tort for employer’s failure to protect private employee information

Employers are well aware of various statutory obligations that companies have to protect employee (and consumer) private information, including for example social security numbers, medical records, etc. One example is Colorado‘s relatively recent statute. The Pennsylvania Supreme Court has extended statutory data privacy laws now, for companies in Pennsylvania, to be a common law principle. […]