Entries by Bill C. Berger

NLRB returns to broad joint employment rule, narrowing availability of contractor usage

In a new regulatory rule, the NLRB has returned to a broad joint employer rule, which narrows the availability of contractor usage. The new rule no longer requires that a putative joint employer actually exercise control over the workers, now it returns to finding adequate potential, even never exercised control, based arguably even solely on […]

Seventh Circuit holds employers may, at least in some circumstances, be required to accommodate a disabled worker’s commuting needs

In a very fact-specific opinion that will likely prove challenging to apply to future fact patterns, the EEOC argued and a 3-judge panel of the Seventh Circuit held that employers may, at least in some circumstances, be required to reasonably accommodate a disabled worker’s commuting needs. The decision is titled EEOC v. Charter Communications LLC. […]

USCIS announces new remote I-9 process

During the Covid-era, USCIS was permitting — for the safety of human resources professionals and all individuals involved — I-9’s to be done remotely. That remote process expired with all employers being required to go back and inspect originals of all previously remotely-inspected documents by August 30, 2023. However, the process proved itself so effective […]

Fifth Circuit eliminates the Ultimate Employment Decision requirement in Title VII discrimination cases

In a case entitled Hamilton v. Dallas County, the Fifth Circuit eliminated the “ultimate employment decision” requirement in Title VII discrimination cases. The case is significant because the requirement for an employer to have taken an actual adverse employment action, in other words to have made some some “ultimate employment decision” that affected the plaintiff’s […]

NLRB begins requiring negotiation schedules as remedies in mandatory bargaining cases

Continuing its expansion of remedies available under the NLRA, the NLRB has begun to mandate that employers schedule negotiation meetings with unions and even submit to the NLRB post-negotiation status updates. See for example the NLRB’s recent decisions in Crushin’ It LLC , Columbus Electric Cooperative, Inc. , and Amerigal Construction Co., Inc. Here is an example of such […]

NLRB returns to more aggressive reviews of handbooks and other policy language

Jettisoning a Trump-era decision that in turn jettisoned an Obama-era approach to handbooks and policies, the NLRB, in a case entitled Stericycle, Inc., has returned to the more aggressive Obama-era approach. Now, the Board will return to reviewing the language of policies on their face for whether the Board believes the language could pose “a reasonable […]

California Supreme Court permits “representative” claims in court under PAGA even though “individual” claims under PAGA must be arbitrated c

Last year, the Supreme Court ruled, in Viking River Cruises, that a mandatory pre-dispute arbitration agreement barred the plaintiff from pursuing claims under California’s statue called “PAGA” (Private Attorneys General Act). PAGA is a statutory scheme that lets individuals pursue claims, often compared to class-/collective-actions, for labor code violations and recover remedies including penalties not […]

Colorado employers, brace for 2023 state legislative developments

The Colorado state legislature enacted a crop of new laws affecting employers in 2023, including the following: The POWR Act (Protecting Opportunities and Workers’ Rights Act) Revisions to existing job/promotional opportunity posting and disclosure requirements Expansion of reasons for taking HFWA/paid sick leave Age-related questions in job applications Penalties related to wrongful refusals to allow […]

Supreme Court holds First Amendment protects expressive speech even in commercial setting, despite anti-discrimination statutory provisions

In 303 Creative, LLC v. Elenis, the Supreme Court held that the First Amendment protects expressive speech even in commercial setting, despite anti-discrimination statutory provisions. The highly controversial decision came in a party-line split decision and is sure to draw more litigation and eventual review by a future Supreme Court. Even the majority opinion noted […]

Supreme Court prohibits affirmative action at undergraduate college level

Reversing its precedent called Grutter, the Supreme Court, in a decision split along political lines, rejected affirmative action. The majority held that Grutter had permitted affirmative action only temporarily, requiring that such programs have an end date. To manage these concerns, Grutter imposed one final limit on race-based admissions programs. At some point, the Court […]

NLRB returns to stricter pre-Trump era independent contractor test

In The Atlanta Opera, Inc., the NLRB reversed its Trump-era precedent SuperShuttle (2019) regarding independent contractors and returned to its Obama-era precedent FedEx II. No longer will the Board be guided by whether the putative independent contractor has a significant “entrepreneurial opportunity” in the relationship. Under this new (old) standard the Board, the Board found that makeup artists, […]

Supreme Court revises undue hardship test for religious accommodations under Title VII

In Groff v. DeJoy, the Supreme Court revised the undue hardship test for religious accommodations under Title VII. Both the ADA and Title VII have an undue hardship test. Title VII requires employers to reasonably accommodate an employee’s religious beliefs, unless the accommodation would pose an undue hardship on the employer. The ADA has similar […]

Eleventh Circuit creates circuit split in failure-to-accommodate cases, inviting Supreme Court review

In Beasley v. O’Reilly Auto Parts, the Eleventh Circuit rejected the argument that failing to accommodate a disabled employee under the Americans with Disabilities Act is itself actionable. The court held that a plaintiff must also prove that he suffered an adverse employment action affecting the terms, conditions or privileges of employment, such as discharge, […]

Colorado Court of Appeals holds that a banquet service fee is not a tip and therefore banquet server is not a tipped employee

The Colorado Court of Appeals held that a banquet server was entitled to overtime because he was not exempt under Colorado’s wage-hour laws as a tipped employee. The employer charged a service fee of 22% that was shared with all the servers, including plaintiff, allowing him to earn between $11.36 and $33.05 per hour depending […]

DHS and ICE remind employers to manually inspect, by August 30, 2023, all I-9 documents accepted remotely during pandemic

During the pandemic, DHS and ICE permitted employers to inspect documents remotely to comply with work-from-home COVID-19 precautions. Now that the pandemic is expiring, DHS and ICE are reminding that is no longer an option and actual inspection of such records will now be required. Specifically, DHS and ICE announced that employers will “have until […]

NLRB reverses its approach to abusive conduct by employees

The NLRB has begun under recent Presidential Administrations to swing back and forth on the test applicable to “abusive conduct” by an employee. When the Board has leaned more towards employer rights, it has, in such situations, looked primarily at the employer’s motive for disciplining-discharging an employee who curses, yells, or otherwise engages in “abusive […]

NLRB announces enhanced remedies in cases of repeat or egregious violations of the NLRA

In its continuing effort to impose enhanced remedies for violations of the NLRA by employers, the NLRB announced that it has expanded the remedies available in the event of repeat or egregious violations of the NLRA, which the NLRB has summarized in its press release, as follows: Adding an Explanation of Rights to the remedial […]

Seventh Circuit rejects request not to use preferred pronouns as religious accommodation

In Kluge v. Brownsburg Community School Corp., the Fifth Circuit rejected as unreasonable an employee’s refusal to use preferred pronouns as a religious accommodation under Title VII. The employee claimed that his religious beliefs required him to use instead pronouns associated with gender as recorded on birth certificates. Several other employees joined him in the request […]

NLRB General Counsel issues Memo attempting to clarify Board decision regarding confidentiality clauses in severance agreements

The NLRB General Counsel issued Memorandum GC 23-05 attempting to clarify the Board’s recent decision in McLaren Macomb regarding confidentiality clauses in severance agreements. The NLRB General Counsel’s Memo can be summarized as making the following broad points: Severance agreements are not prohibited in general. Severance agreements with confidentiality clauses that are narrowly tailored to […]

Denver passes ordinance recognizing municipal-level wage claim rights in addition to state and federal protections

In addition to state and federal protections, the City and County of Denver passed Ordinance 22-1614, which allows workers in Denver — whether employees or contractors or employees of staffing agencies — to file wage claims, which will investigate and can impose penalties. Additionally, the City can, under the ordinance, commence its own investigation without […]

Sixth Circuit holds that request for FMLA leave is protected even if the employee is not entitled to FMLA leave much less takes FMLA leave

In Milman v. Fieger & Fieger, LLC, the Sixth Circuit held that a equest for FMLA leave is protected even if the employee is not entitled to FMLA leave much less takes FMLA leave. There the plaintiff claimed she’d been retaliated against for requesting FMLA leave, and her employer responded that she had not been […]

Ninth Circuit holds USERRA leave must be paid if employer offers “comparable” paid leave

In Clarkson v. Alaska Airlines, Inc., the Ninth Circuit held that USERRA leave must be paid if the employer offers other “comparable” paid leave. To determine whether other paid leave is “comparable” to USERRA leave, the Ninth Circuit identified three factors: “duration, purpose, and control,” of which, it said, duration is the most important, and in […]

Federal government issues guidances regarding the use of AI, software and algorithms in employment

The federal government issued multiple guidances regarding the use of AI, software and algorithms in employment including hiring, accommodation decisions and medical or other private inquiries. See for example \recent guidances by the EEOC, White House, and DOJ. The White House summarized its goals for an AI Bill of Rights in employment, as follows: You […]

NLRB permits micro units

In American Steel Construction the Board reversed a Trump-era ruling regarding micro units, allowing the Board to certify elections in union organizing campaigns of sub-groups of workers so long as the sub-group is “readily identifiable as a group based on job classifications, departments, functions, work locations, skills or similar factors.”

Third Circuit adopts “about to” test for gauging protected activity under FLSA

Employers are prohibited from retaliating against employees who exercise their rights under federal wage law (FLSA). But what if the employee hasn’t yet, maybe is about to? In Uronis v. Cabot Oil & Gas Corp., the Third Circuit held FLSA prohibits retaliation “where an employer anticipates an employee will soon file a consent to join an […]

Third Circuit holds that an employer’s decision to conduct an investigation can be used as evidence of pretext even if the investigation produces credible evidence of a violation warranting discharge

In Canada v. Samuel Grossi & Sons, Inc., Third Circuit held that an employer’s decision to conduct an investigation can be used as evidence of pretext even if the investigation later produces credible evidence of a violation warranting discharge. In the case, the company asserted that it had terminated an employee after a search of […]

Supreme Court holds that Highly Compensated Employee exemption requires guaranteed salary irrespective of actual amount paid

Federal law (FLSA) contains an exemption from overtime requirements for Highly Compensated Employees. In its Fact Sheet 17H, DOL summarizes the Highly Compensated Employee exemption, as follows: The regulations contain a special rule for “highly compensated” employees who are paid total annual compensation of $107,432 or more. A highly compensated employee is deemed exempt under […]

NLRB holds that separation agreements containing broad nondisclosure, nondisparagement or confidentiality language may violate Section 7 of the NLRA

Overruling Trump-era Board precedent, the NLRB, in McLaren Macomb, held that separation agreements containing broad nondisclosure, nondisparagement or confidentiality language may violate Section 7 of the NLRA, which protects both unionized and non-unionized workers (and which the Board is increasingly viewing as protecting non-employee contractors as well). The Board will now review such language to […]

NLRB permits consequential damages as possible remedies

In follow-up to the prior post regarding NLRB General Counsel Memorandum 21-06, the Board has authorized the award of at least some no previously recognized remedies under the NLRA. The case was Thryv Inc. The Board did not specify particular aspects of relief, saving that for lower decisionmakers in particular cases. Without calling them “consequential […]

DOL issues Field Assistance Bulletin reminding employers that federal wage-hour requirements still apply even when employees are working remotely

In its Field Assistance Bulletin 2023-1 , the DOL reminds employers that federal wage-hour requirements still apply even when employees are working remotely. Thus for example, employers still must comply with the requirements to provide and document meal periods and rest breaks, as well as lactation breaks, and although employers may suspect that a remote […]

Ninth Circuit strikes down California’s AB 51

In Chamber of Commerce of the United States of America v. Bonta, the Ninth Circuit struck down the California law known as “AB 51,” which, without explicitly invalidating mandatory pre-dispute employment arbitration agreements, would have made it a crime for employers to enter into such an agreement with its workers. The Court held that AB 51 […]

NLRB General Counsel pushes for enhanced remedies under NLRA

In NLRB General Counsel Memorandum 21-06, the NLRB General Counsel has ordered Board offices to seek remedies never before recognized as available under the NLRA, including the following, each subject to circumstances described in the Memo: Enhanced consequential damages Including even front pay And reimbursement of union organizing costs Mandating hires Lost wages to individuals […]

Congress enhances laws protecting pregnant and nursing mothers at work

President Biden has signed into law the Consolidated Appropriations Act, which includes two enhancements to the protections applicable to pregnant and nursing mothers at work: The Pregnant Workers Fairness Act (CAA Sec. 101-109) applies to employers of 15 or more, subject to some exceptions, and requires reasonable accommodations of pregnancy, even though a short-term condition […]

NLRB permits wearing of union insignia absent special circumstances

In Tesla, Inc., the NLRB reversed a Trump-era decision re union insignia, returning to prior caselaw holding that employers must allow employees to wear union insignia despite dress codes and uniform policies, unless “special circumstances” require otherwise. Whether special circumstances exists will depend on whether, in each case’s circumstances, the union insignia “may jeopardize employee […]

Congress enacts limitations on non-disclosure and non-disparagement agreements regarding sexual harassment and sexual assault

President Biden signed into effect the Speak Out Act, which prohibits judicial enforcement at least in federal and tribal courts of non-disclosure or non-disparagement clauses when sought to be enforced relative to a matter involving sexual assault or sexual harassment, so long as the clause is in an agreement entered into on or after 12/7/2022. […]

NLRB enhances employee property access rights for labor protest activities

Reversing its Trump-era approach, the NLRB held in Bexar County Performing Arts Center Foundation that property owners can only exclude the employees of contractors who work on-site, during labor protests, when their protest activities “significantly interfere” with the use of the property or when justified by “another legitimate business reason.” The case involved the owner […]

Colorado Court of Appeals certifies class in wage lawsuit for rest breaks but not meal periods

Colorado wage law affords employees (1) a 30-minute meal period, subject to a number of requirements and conditions, which, if circumstances on a given day make it impractical to take, requires that the employee be paid for the time spent working instead and further that the employee be allowed an on-the-clock opportunity to consume a […]

CDLE publishes basket of materials to help employers meet January 1 deadline for FAMLI program

The CDLE has published a basket of materials to help employers meet January 1 deadline for the new FAMLI program. FAMLI will be the new paid leave government program. It was established by voters in Colorado who in 2020 approved Proposition 118. The new program will provide benefits (not too unlike how current workers compensation […]

CDLE issues form Colorado employers may use as a separation notice

As previously posted on this blog, Colorado passed a new statutory requirement to inform employees of various information, including unemployment rights, at separation. Unfortunately, that new law gave no guidance on what such a notice might actually look like and only vaguely suggested content bullet points. Now, the CDLE has issued a draft form that […]

Should you notify your insurance carrier or not?

The New York Times ran an interesting article about a potentially devastating mistake by, of all places, Harvard: Failing to notify one of its insurance companies may cost the university $15-million. To be sure it depends on your insurance policy, what your deadline will be. Different policies set different deadlines. Some set a certain number […]

DOL issues proposed joint contractor rule

The DOL has issued yet another proposed rule regarding independent contractors. Under recent Presidents the DOL has ping-ponged back and forth issuing stricter or looser rules purporting to define the test for determining if individuals are working as employees or independent contractors (for the purposes of a number of laws under the DOL’s jurisdiction). In […]

NLRB reimposes requirement to keep dues checkoff clause in effect following expiration of CBA

The Biden Board has reversed a ruling by President Trump’s NLRB, returning to the Obama-era ruling, which had in turn reversed longstanding precedent regarding whether dues need to continue to be paid to a union even after the CBA requiring dues payment (a “dues checkoff” clause) had expired. Historically, the ruling had been, since at […]

Tenth Circuit rejects Cat’s Paw argument holding that review of termination decision by an independent decisionmaker breaks causal link on retaliation claim

In Parker v. United AirLines, Inc., the Tenth Circuit rejected the plaintiff’s Cat’s Paw argument holding that the review of her termination by an independent decisionmaker broke any causal link on her claim of retaliation. Retaliation entails a causal link between an employee’s use of FMLA leave and the firing. That causal link is broken […]

GSA permits union access on Executive Branch’s federal property

The GSA issued a final rule that permits unions to enter onto the properties owned or leased by the federal Executive Branch, in order to contact non-union and already unionized workers employed by the federal government or even its contractors. The rule is intended to assist unions in organizing campaigns and in administering existing CBA’s. […]

Tenth Circuit reinstates some claims by a worker but affirms dismissal of others

In a case involving rather significant allegations of misconduct, the Tenth Circuit parsed through the evidence to hold, on summary judgment, that some of the worker’s claims were properly dismissed but other should have been allowed to proceed. On her claim of discrimination, her case included a claim that an officer of the company said […]

Fourth Circuit holds that gender dysphoria can sometimes constitute a disability protected by the ADA

In Williams v. Kincaid, the Fourth Circuit held that, while being transgendered itself is not a disability protected by the ADA (Americans with Disabilities Act), gender dysphoria can sometimes be. The Fourth Circuit summarized gender dysphoria as a “discomfort or distress that is caused by a discrepancy between a person’s gender identity and that person’s […]

Seventh Circuit Affirms Employer’s Right To Provide Workers Comp Light Duty But Refuse To Provide Light Duty To Pregnant Workers

In EEOC v. Wal-Mart Stores East, L.P., the Seventh Circuit held that an employer need not offer light duty to pregnant workers, even though it offers the same to employees who are on workers compensation, so long as the company does not also offer light duty to those who are ill or injured off-the-job. In so […]

Supreme Court narrows federal courts ability to find jurisdiction to enforce arbitration awards under the Federal Arbitration Act

The Federal Arbitration Act is a nationwide law that authorizes arbitration of a number of types of claims, including many employment claims, such as discrimination and retaliation lawsuits. In recent years, the Supreme Court has taken an increasingly strong view of enforcing arbitration agreements, including in the employment context. But does a federal or a […]

President Biden signs new law allowing employees to opt out of mandatory pre-dispute arbitration agreements in cases of sexual harassment and sexual assault

President Biden signed H.R.4445 (the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act”), which allows employees to opt out — on their own behalf or as a class representative — of mandatory pre-dispute arbitration agreements in any “sexual harassment dispute or sexual assault dispute.” Both types of dispute are defined broadly to encompass […]

Supreme Court holds public school coach’s midfield post-game prayer, with students, is protected by First Amendment

A 6-3 majority of the Supreme Court held in Kennedy v. Bremerton School Dist. that a public school coach’s midfield post-game prayer, with students, is protected by the First Amendment. Respect for religious expressions is indispensable to life in a free and diverse Republic—whether those expressions take place in a sanctuary or on a field, […]

Tenth Circuit expands possible successor liability for a purchaser especially if their purchase agreement contains a due-diligence clause

Generally, the purchase of a business can be done in two ways: (1) a so-called “equity deal” where the stock in a corporation (or other ownership interest if the business is not a corporation) is acquired or (2) an “asset deal” in which only the assets of a business are acquired. In an equity deal, […]

Colorado Supreme Court upholds state paid leave program

In 2020 Colorado voter passed Proposition 118, which calls for the creation of a state agency that will (not unlike current workers compensation and unemployment agencies) provide paid family leave commencing January 1, 2023. In Chronos Builders, Inc. v. CDLE, a unanimous Colorado Supreme Court upheld Proposition 118, holding that the premium the new agency will […]

Supreme Court holds that mandatory pre-dispute arbitration agreements mandate arbitration and can block class-collective actions despite California law to contrary

Since at least 2019, it has been clear under Supreme Court precedent that mandatory pre-dispute arbitration agreements entered into with employees are binding and enforceable, even if it means the employee cannot bring a class- or collective-action as part of her claims. California attempted to work around that caselaw with an innovative state law (“PAGA” […]

Colorado passes new unemployment statute mandating documentation be provided to terminated employee

A new Colorado unemployment law has added a disclosure obligation for companies, to be codified at CRS 8-74-101(4). This information must be provided to employees at the time of separation, in writing, and may be provided electronically or by hard copy. The information must include: (a) the employer’s name and address; (b) the employee’s name […]

Supreme Court holds baggage handler is “engaged in foreign or interstate commerce” and therefore need not arbitrate wage claims and may instead pursue a class-collective action in court

The interplay between federal and state wage-hour laws versus the Federal Arbitration Act is a bit tricky. To be sure there are complicated nuances and conflicting state and local laws, but to simplify: Federal and state wage-hour laws permit employees generally to pursue a class-collective action in court; however, if they have entered in an […]

CDLE publishes INFO 16 explaining an employer’s right and obligation to deduct and take certain credits

The CDLE has published INFO 16, which explains an employer’s right (and obligation) to deduct and take certain credits. Included in INFO 16, the CDLE explains Colorado’s new law governing an employer’s ability — by way of a new very specific timeline — to deduct “to recover the amount of money or the value of […]

Supreme Court holds that prejudice need not be shown if a party waives its right to demand arbitration

The FAA (Federal Arbitration Act) permits a party to an arbitration agreement to demand, when sued in court, that the lawsuit be submitted to arbitration instead, but what if that party waives its right to demand arbitration by litigating the case in court for a while before deciding to demand arbitration? Must the other party show […]

Colorado clarifies and expands enforcement processes, remedies and penalties related to a variety of wage, misclassification, safety and enforcement procedures

By SB 22-161, the Colorado legislature clarified and expanded a number of enforcement processes, remedies and penalties related to a variety of wage, misclassification, safety and enforcement procedures. Included in the changes are restructurings of the ways and procedures by which penalties can be assessed, as well as enhancement of available remedies and penalty amounts. […]

Colorado expands whistleblower protections beyond complaints related to public health emergencies to complaints regarding health and safety concerns

Previously during the pandemic, Colorado passed a whistleblower law that protected complaints in the workplace regarding a public health emergency. By way of SB 22-097, Colorado expanded that protection to “any reasonable concern about workplace violations of government health or safety rules, or about an otherwise significant workplace threat to health or safety” that is […]

Colorado passes new law severely limiting restrictive employment agreements, including non-competes, non-solicits and even some non-disclosures

Colorado passed HB 22-1317, which severely limits restrictive employment agreements, including non-competes, non-solicits and even some non-disclosures. HB 22-1317 is currently before the Governor where it is expected to become law without veto. HB 22-1317 applies only to agreements containing such provisions if entered into on or after 8/10/2022; however, the Act contemplates the possibility […]

Supreme Court holds that at least some “weaponized” speech loses at least some First Amendment protections

In Houston Community College System v. Wilson, the Supreme Court unanimously held that a public official, like all of us, enjoys free speech rights under the First Amendment; however, that speech cannot be weaponized in an effort to silence the free speech of others. The First Amendment surely promises an elected representative like Mr. Wilson […]

Maryland joins ranks of states mandating some form of paid sick leave

Law 360 ran a recent article noting that Maryland has joined the ranks of at least 10 states (California, Colorado, Connecticut, Maryland, Massachusetts, New Jersey, New York, Oregon, Rhode Island, Washington, Washington, D.C.) that have already mandated some form of paid sick leave. Employers are reminded to check each jurisdiction’s laws as they vary widely, […]

EEOC issues guidance on federal anti-discrimination laws and employees who are caregivers outside work

The EEOC has issued a guidance explaining that employees who act as “caregivers” for their family and friends may be protected by existing anti-discrimination laws. The EEOC does not define the phrase “caregiver” and, therefore, presumably intends it in a general dictionary sense. In other words, readers should note the EEOC is not using that […]

DOL issues guidance on FMLA and FMLA retaliation

The DOL issued Field Assistance Bulletin 2022-02 to provide updated guidance on the anti-retaliation laws it oversees, including the FMLA and FLSA. The guidance provides a series of hypotheticals that illustrate when an employer might or might not have committed prohibited retaliation. HR professionals and employment lawyers may be interested in reviewing the guidance to […]

Texas federal trial court un-freezes Trump-era DOL independent contractor rules

In a case titled, Coalition for Workforce Innovation v. Walsh, a Texas federal trial court has un-frozen the Trump-era DOL independent contractor rules, which were frozen by the incoming Biden Administration. As noted in a prior post on this blog, the Trump-era rules were seen as especially important for gig-economy companies. As the court’s order […]

Pandemic-era I-9 List B expansion ending 5-1-2022

Effective 5/1/2022, the DHS will end its temporary pandemic-era program that allows employers to accept expired List B documents (such as drivers licenses). During the pandemic, DHS recognized that many issuers of the List B documents (such as state motor vehicle departments ) were being overwhelmed by employee absences related to COVID-19. As a result, […]

Wall Street Journal article highlights growing positive drug tests as a challenge for employers

Today’s Wall Street Journal ran an interesting article that highlights the growing challenge employers face trying to hire drug-free in light of a 2-decade high surge in positive drug test results in 2021. Of the more than six million general workforce urine tests that Quest Diagnostics Inc., one of the country’s largest drug-testing laboratories, screened for marijuana last […]

Video clip of Amazon union-awareness training leaked

A recent New York Times’s article about Amazon’s union-awareness training included a link to a video clip of a short two minute twenty second sample of some of Amazon’s training. HR professionals, individuals and their counsel who have not observed this kind of training might be interested in watching it. Please remember all such training […]

CDLE publishes searchable index of its citations and appeals

HR professionals and employment lawyers will have noticed that the CDLE has become increasingly active in Colorado employment law issues in recent years. Are you curious what the agency is actually doing as it enforces this crop of Colorado laws? The CDLE is helpfully publishing a searchable index of its citations and appeals. Available keyword […]

Tenth Circuit rules that, at least for some jobs, time spent turning on computers is work time under FLSA

The Tenth Circuit ruled that, at least for the jobs in the case before it, the time that employees spent turning on computers was compensable work time, which, for non-exempt workers, must be paid and must count towards overtime. First the court held that the time counted as work time (or in the words of […]

Tenth Circuit expands ability to file retaliation claims under Title VII

Title VII is the nation’s leading anti-discrimination law. It also prohibits employers from retaliating against employees who oppose unlawful acts such as discrimination. But what if the employee is opposing an act that isn’t actually unlawful discrimination? What constitutes an unlawful discriminatory act prohibited by Title VII can be a surprisingly complicated legal issue. In […]

More states adopt pay transparency laws following Colorado’s lead

Following Colorado’s groundbreaking (and highly controversial) pay transparency law, which includes a requirement that job postings disclose a range of wages and benefits (among other things), New York has adopted a similar law effective May 15, 2022, as have Connecticut, Nevada and (effective 1/1/2023) Rhode Island. California, Maryland and Washington have also adopted similar laws […]

CDLE publishes new crop of rules and posters for 2022

The CDLE (Colorado Department of Labor and Employment) posted a new crop of rules and posters for 2022. Included are the following: COMPS Order #38 with a supplementary PAY CALC Order. The new COMPS Order is effective 1/1/2022. The new order includes: The new minimum hourly wage in Colorado ($12.56, or for tipped employees, $9.54). […]

Tenth Circuit narrowly applies Joint Employer doctrine

In a narrow application of the Joint Employer doctrine, the Tenth Circuit rejected claims of sexual harassment by the plaintiff who worked for a construction and maintenance company that had contracted with another company. She claimed that three of the employees of that other company sexually harassed her. Since that other company was not her […]

Tenth Circuit takes expansive view of remedies available in Title VII claims

In a recent decision, the Tenth Circuit took an expansive view of the remedies available to a plaintiff in a Title VII claim, including on the following points of law: The court held that reinstatement is the strongly preferred remedy, instead of front pay. Often in cases, especially after the tribulations of a trial, courts […]

DOL withdraws Fact Sheet 84 re pay for vaccine and related time

Saying it had made a mistake by publishing Fact Sheet 84 explaining the compensability of time related to vaccines, testing, etc., the DOL cautions that the content of its now-withdrawn Fact Sheet 84 may in fact end up stating correctly its views. Apparently the publication of the Fact Sheet was premature in that the DOL […]

Do employers face exposure for claims by non-employees for coronavirus contracted from employees?

The California Court of Appeals recently held that an employer can be sued by the estate of a non-employee spouse who passed away from COVID-19 allegedly contracted from his employee-wife who allegedly contracted it at workplace due to the alleged negligence of her employer. Plaintiffs allege that Mrs. Ek, defendants’ employee, contracted COVID-19 at work […]

DOL issues Fact Sheet 84 explaining compensability of time related to CV19-related vaccines, testing, temperature checks, etc.

The DOL issued a new Fact Sheet (#84) explaining when time must be paid related to coronavirus-related vaccinations, testing, temperature checks, etc. Time must be compensated if the activity was required by the employer; it need not be compensated if it was at the option of the employee. Time that must be compensated counts as […]