Entries by Bill C. Berger

Three new expansions of California law warrant employer considerations

Employers in California should carefully consider three new legal developments there. 1. California has restricted the use of nondisclosure agreements. In California, employers may not include nondisclosure (confidentiality) provisions in settlement agreements involving allegations of sexual harassment or sex discrimination, or certain other sexual offenses (whether in the workplace or housing). See Senate Bill 820. […]

Court may enter default judgment if party refuses in “bad faith” to pay arbitration fees

As noted in a previous post, arbitration isn’t just a private form of litigation. It’s a fundamentally different process than litigation. One major difference is that, in arbitration, one or both parties (depending on their arbitration agreement) pays the arbitrator’s fees, and those fees need to be paid as the case is being processed. The […]

OSHA confirms that employers can require post-incident drug tests and can also offer safety incentives

Clarifying what had been a controversial approach, OSHA issued a memo that clarifies its position regarding two common employer policies, confirming that neither constitutes unlawful retaliation: 1. Post-accident drug testing will not generally violate OSHA’s anti-retaliation provisions. Action taken under a safety incentive program or post-incident drug testing policy would only violate 29 C.F.R. § […]

You get what you get with arbitration, holds Colorado Court of Appeals

Employers considering adopting arbitration agreements might be interested in a recent decision by the Colorado Court of Appeals. The Court’s ruling highlights some of the major differences between litigating in courts and arbitrating before a private arbitrator. The case involved an arbitration agreement that required arbitration of claims “arising” under the parties’ contract. One of […]

Tenth Circuit holds that FLSA’ anti-retaliation provision reaches farther than its other clauses

The Fair Labor Standards Act (FLSA) is the nation’s leading wage-hour law. Most notably it includes requirements such as minimum wage, overtime and child labor laws. Those provisions apply onto to an “enterprise” that is engaged in interstate commerce. It also prohibits retaliation against workers who exercise FLSA rights. In a recent case, the Tenth […]

Unions face increased exposure for DFR charges

The NLRB General Counsel issued a memorandum directing the Board’s enforcement personnel to be more aggressive in prosecuting charges against unions under the National Labor Relations Act sec. 8(b)(1)(A), which imposes a Duty of Fair Representation (“DFR”) on unions. Under Sec. 8(b)(1)(A), workers who are represented by a union may file a DFR charge alleging […]

Bureau of Consumer Financial Protection Issues Updated FCRA Model Disclosures

The Bureau of Consumer Financial Protection (Bureau) issued an interim final rule that updates its model disclosures under the Fair Credit Reporting Act (FCRA). The new FCRA forms advise individuals of their right to, now, request a free “national security freeze” under the Economic Growth, Regulatory Relief, and Consumer Protection Act. The “national security freeze” […]

Denver federal court, one of the most pro-employee?

In what is likely to be a bombshell article amongst Colorado labor and employment attorneys, Bloomberg BNA reported today that its analysis of judicial statistics shows Denver’s federal court to be the most employee-plaintiff friendly of 11 federal courts it has analyzed. “The other courts Bloomberg Law has reviewed are: the Eastern District of New […]

Massachusetts non-compete law

Massachusetts has adopted what may be the country’s singlemost employee-side non-compete law. That law, among other things, mandates at least 1/2-year’s garden leave, in other words, at least 1/2 of an employee’s average salary (with the formula to calculate specified in the statute). Timing requirements are imposed regarding the process by which covenants can be […]

Tenth Circuit holds that failure to exhaust is an affirmative defense not a jurisdictional defect in Title VII claims

The Tenth Circuit has reversed longstanding precedent to, now, hold that a plaintiff’s failure to exhaust the administrative charge requirements of a Title VII claim is a mere affirmative defense, not a jurisdictional defect. What’s the difference? The courts have jurisdiction to hear the circumstances surrounding the failure to exhaust when it is asserted as […]

Troubled by NLRB Member Emanuel’s recusal in Hy-Brand?

If, like many, you are troubled by the recent recusal of NLRB Member Emanuel from the Hy-Brand case, you might want to read an article in the latest newsletter by the ABA Labor and Employment Law Section. What’s Hy-Brand? Hy-Brand Industrial Contractors, 365 NLRB No. 186 (2015), was a decision by the NLRB under President Trump. It overruled […]

Are you ready for Colorado’s new data privacy law?

Colorado just passed a new data privacy law that will take effect September 1, 2018. It’s recommended that companies immediately take steps to conduct internal audits and develop compliance policies, which may also entail policy reviews. For an excellent summary of this new law, check out this article from Brownstein Hyatt Farber Schreck. Source: Colorado […]

Will other states follow California’s lead with enhanced National Origin protections?

Effective July 1, 2018, California has, by way of administrative regulations, enhanced the protections against national origin discrimination found in its mini-Title VII called the California Fair Employment and Housing Act. These well-intentioned but poorly drafted regulations expand the definition of national origin, now, to include an individual’s or their “ancestor’s” “actual or perceived”: physical, […]

Union Leader Salaries Soar

Issued just before the Supreme Court’s Janus decision, a survey of union leader salaries is a stunning bookmark to the Court’s blockbuster decision holding that public employees cannot be required to pay “fair share” fees, much less dues, to unions. The survey is based on public filings by the unions. It lists total compensation packages for […]

“Colorado denies widow half of late husband’s workers’ compensation due to his marijuana use”

The Denver Post reports, “The state of Colorado is denying half the workers’ compensation death benefits to a woman whose husband died while working on a ski lift because he had marijuana in his system.” Colorado workers compensation law does impose a 50% penalty on workers compensation benefits (not including medical expenses) for workers who […]

“Zero Tolerance” policies go too far according to … the EEOC?

Employers should steer clear of “zero tolerance” policies according to the EEOC. A “zero tolerance” policy provides that any form of proscribed behavior (typically sexual harassment or discrimination) will result in immediate discharge. Zero tolerance policies can “chill reporting,” cautions EEOC Commissioner Chai Feldblum (a Democrat appointee). According to Commissioner Feldblum, individuals may choose not […]

California Court of Appeals rejects double-dipping for penalties in certain wage-hour cases

California state law provides for penalties and other liability under California’s Private Attorney Generals Act when an employer fails to provide an accurate, itemized wage statement (which statements must contain certain types of information further specified under California law). But what if the statement was correct when issued but later the employer is held liable […]

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Will the Supreme Court’s recent blockbuster in Janus apply to private employers?

Employers have begun arguing that the Supreme Court’s recent blockbuster decision in Janus should be extended to private employers. In Janus, the Supreme Court ruled government workers cannot be required to pay “fair share” fees, much less union dues. The decision will have a huge impact on labor in America. Effectively, Janus converted government workforces into right-to-work workplaces. The decision […]

The EEOC and a mixed fallout from #MeToo

Recent developments at the EEOC reflect a mixed fallout from the #MeToo movement. Despite massive social change seen at many levels from #MeToo, with celebrities, politicians and business leaders all being called to answer for allegations of sexual harassment — and despite many lawyers who anecdotally report seeing increased charges in their own practices — […]

Is this the end of unions in America? The Supreme Court’s “fair share” ruling in five questions

The Supreme Court ruled that unions cannot charge government workers a “fair share” representation fee, much less union dues. The decision may well be beginning of the end for America’s unions, at least as the political and social juggernauts that we’ve come to know. What’s a “fair share” fee? A “fair share” fee is like […]

Joint Employer rule coming from NLRB?

The NLRB’s approach to the Joint Employer doctrine has proven exceedingly controversial. The NLRB’s approach has sparked similar controversy in both the courts and at the D.O.L. Soon, more fuel will be added to the political fires. The N.L.R.B. announced its intent to publish a proposed joint employer rule. What’s it likely to say? Stay […]

Board steers a sharp 180 in the application of Section 7 to handbooks and policies

During President Obama’s administration, the NLRB substantially expanded its scrutiny of handbooks, workplace rules and workplace policies that, it felt, conflicted with Section 7 of the National Labor Relations Act. Section 7 is the part of the Act that permits both unionized and non-unionized workers to act together in concert to further their wages, hours […]

SCOTUS rules for baker in Masterpiece Cakeshop

By 7-2, the Supreme Court ruled for the baker in the Masterpiece Cakeshop case. All seven of the judges that formed the majority were struck by comments from the Colorado Civil Rights Commissioners that evidenced an anti-religious bias among the Commissioners when they decided the case. The Supreme Court called those comments “inappropriate,” “dismissive,” and […]

First and Seventh Circuit decisions illustrate the “adverse employment action” requirement in EEO cases

As a general rule, the EEO laws, such as Title VII (race, gender, religion, etc.) and the ADEA (age), do not allow a plaintiff to sue for the everyday “slings and arrows” they might suffer in the workplace (quoting Shakespeare’s Hamlet). Rather, the law requires an “adverse employment action.” The adverse employment action test requires […]

California adopts ABC Test for gauging independent contractor classification

The California Supreme Court announced a new test for determining whether a worker is truly an independent contractor or an employee under California’s wage orders (regulating wages, hours and working conditions). (I)n determining whether, under the suffer or permit to work definition, a worker is properly considered the type of independent contractor to whom the […]

Supreme Court upholds mandatory pre-dispute arbitration agreements, even when they bar class/collective actions

In a 5-4 decision the Supreme Court may have given employers — at least in some states — to block class and collective actions. The Court ruled that mandatory pre-dispute arbitration agreements are enforceable under the Federal Arbitration Act (FAA), even in employment cases, and even as a block against class/collective actions. The Court had […]

“Spiritual coercion,” “volunteers” and children under federal wage laws

Two recent decisions by the U.S. Circuit Court of Appeals address the applicability of federal labor laws to church volunteers. The Fair Labor Standards Act (FLSA) is the nation’s leading wage-hour law. FLSA requires a minimum wage, overtime pay and prohibits child labor. FLSA applies only to “employees.” Volunteers are generally not considered to be […]

Obama-era Executive Order 13673 (entitled Fair Pay and Safe Workplaces”) repealed

Congress has repealed regulations implementing President Obama’s 2014 Executive Order 13673, titled the Fair Pay and Safe Workplaces Act, and, as he signed that Congressional Resolution into effect, President Trump signed his own Executive Order repealing President Obama’s Executive Order itself. This brings an end to Executive Order 13673 in its entirety. The executive order […]

When an “interstate” driver isn’t, but is …

Both federal law (the Fair Labor Standards Act, “FLSA”) and Colorado law (the Colorado Minimum Wage Act, the Colorado Wage Claim Act, and the Colorado Minimum Wage Order) exempt “interstate drivers.” Under FLSA, a driver can be considered “interstate” if she, like taxi drivers, is subject to the federal Motor Carrier Act, even where she […]

DOL revives self-reporting program

The United States Department of Labor (DOL) has revived its Payroll Audit Independent Determination (PAID) program, which is designed to allow employers who suspect they have violated the Fair Labor Standards Act (FLSA) to self-report the suspected violation and get the DOL’s take on the situation. Unfortunately that’s about all an employer gets. The program […]

Under the Supreme Court’s new “fair reading” doctrine, will FLSA exemptions be interpreted more broadly?

Historically courts have interpreted the overtime exemptions in FLSA (the Fair Labor Standards Act) narrowly in favor of employees. This “narrow construction” doctrine has made it difficult to treat employees who may be exempt as such unless they clearly fit an exemption. Now, the Supreme Court has rejected the “narrow construction” doctrine, ruling that it […]

Michigan and Wisconsin preemptively ban prohibitions against salary history inquiries

In stark contrast to a trend of authorities that have begun to prohibit inquiries into salary histories, Michigan and Wisconsin have each now passed legislation that prohibits and preempts any effort within those states by local governments to enact such a prohibition. While Wisconsin’s ban is more limited in nature, Michigan’s makes no effort to […]

Colorado Supreme Court holds statute of limitations on wage claims runs from pay period following its due date

The Colorado Supreme Court held that the statute of limitations under the Colorado’s Wage Claim Act, CRS. 8-4-101 to -123, begins to run from the pay period when the wage first becomes due and is unpaid. The facts of the case illustrate the importance of this holding. Like many states, Colorado’s wage claim laws permit […]

Second Circuit holds Title VII has always protected sexual orientation within its protection of “sex”

Following a recent series of cases discussed earlier on this blog, the Second Circuit has held that sexual orientation is, and has always been, included within the meaning of Title VII’s protection of “sex.” Title VII prohibits discrimination on the basis of sexual orientation as discrimination “because of . . . sex.” To the extent […]

NLRB holds hotel owner REIT liable as a “statutory employer” for otherwise lawful lawsuit against union

Companies that own properties, such as hotels, may find themselves being damaged by the activities of unions who represent or seek to represent workers on the property, even workers who are employed by other companies. Such property owners may have legal rights at-issue and may sue unions and workers for violation of those rights. However, […]

Google memo litigation continues, on two fronts

As previously reported on this blog, the NLRB recently cleared Google of charges that it had allegedly violated Section 7 of the National Labor Relations Act by discharging the author of a controversial memo that attempted to explain his view that men are biologically more fit to be engineers than women. The NLRB held that, […]

NLRB clears Google, signals more employer-respectful approach to discipline of workplace misconduct

In a shift from recent NLRB decisions holding employers liable under the National Labor Relations Act’s Section 7 for disciplining employee misconduct that is offensive, disrespectful and harassing, the NLRB General Counsel recently cleared Google of charges that, by disciplining an employee for having written an offensive memo, it had somehow violated the Act. Section […]

“Tolling” versus “Suspending”: Which is it? SCOTUS says “tolling” means tolling.

Imagine a plaintiff who has both federal and state law claims. This is commonly the case in employment lawsuits where a plaintiff may, for example, have federal discrimination claims (often under Title VII) and state law claims (such as assault). Imagine that plaintiff faces a 2-year statute of limitations on their state law claims. Assume […]

State legislatures considering sexual harassment reforms

As previously reported in this blog, Congress has already addressed sexual harassment reforms, including by implementing significant restrictions on the tax treatment and ability to keep confidential settlements and awards related to sexual harassment. Now, as state legislatures begin convening, it is expected that reform efforts related to sexual harassment will be debated at at […]

NLRB likely to rescind Obama-era expedited election rules

In a continuing trend of reversing Obama-era precedents, the Trump Board has signaled it will soon be rescinding the prior administration’s 2014 election rules. Those rules govern the election for (or against) unions to be recognized as a group of workers’ exclusive bargaining agent. The Obama-era rules greatly expedited the timeline for such an election […]

NLRB reverses micro-unit rule

Continuing its trend of reversing Obama-era precedents, the NLRB has reversed 2011’s Specialty Healthcare, which had recognized the possibility of a union representing only a portion of a bargaining unit, i.e., a micro-unit. Micro-units were favored by unions when they felt they were able to persuade a majority of the smaller group to vote Yes […]

NLRB reverses course on workplace civility rules

As previously reported on this blog, with a now Republican majority on its Board, the NLRB has begun reversing course on a number of issues. On December 14, 2017, the Board overruled its 2004 precedent in Lutheran Heritage Village-Livonia, which had suggested that workplace civility rules violated the NLRB. This case confirms that the National […]

NLRB reverses Obama-era joint employer doctrine

Continuing its trend of reversing Obama-era NLRB decisions, the Trump Board has reversed one of the most controversial, the Board’s 2015 decision, Browning-Ferris Industries, in which the Board had held that mere proof of indirect or even potential control was sufficient to create a joint employer relationship. In this decision, Hy-Brand Industry Contracts, Ltd., the […]

NLRB General Counsel issues memo outlining likely reversals to Obama-era precedents

As previously reported here in this blog, the Trump Board (NLRB Boards are often colloquially but not pejoratively referred to by the President during their term) has begun overruling Obama-era precedents. Further reversals are anticipated. Curious which Obama-era NLRB precedents are likely to be reversed? NLRB General Counsel Robb issued a controversial memo, shortlisting the […]

Disability discrimination claim denied, despite claims of shifting reasons and temporal proximity

Shifting reasons and temporal proximity are two of the most common arguments in discrimination cases. Employees often (correctly) argue either or both as part of efforts to withstand a motion for summary judgment. A recent Eleventh Circuit case illustrates how these arguments work. An employer may file a motion for what is called “summary judgment” […]

Republican-majority NLRB begins overruling Obama-era precedents

As reported here, the Trump administration, earlier this year, completed nominations to the NLRB sufficient to constitute a Republican majority of the Board. As predicted, the new Republican-led Board has begun overruling Obama-era precedents. The first case, UPMC, involves the Board’s procedural requirements for accepting settlement agreements. Historically an administrative law judge (ALJ) at the […]

Impact of Tax Overhaul on Employers

As President Trump readies to sign the Tax Cuts and Jobs Act of 2017, employers can begin to prepare for several impacts of the Act. Aspects of this tax overhaul that will affect employers include the following: Addition of a prohibition against deducting settlements — and attorney fees and costs involved in defending matters — […]

Turn on your radios!

The Supreme Court holds oral arguments tomorrow in Masterpiece Cakeshop. I will be live in-studio on 850 KOA Colorado’s Morning News, for a series of segments starting about 8:00 AM tomorrow morning discussing the case.

Tenth Circuit reaffirms need for irreparable harm to obtain injunction in trade secrets case

Both federal and state law (respectively, the Defend Trade Secrets Act (DTSA) and Colorado’s Uniform Trade Secrets Act (CUTSA)) authorize a company to obtain a preliminary injunction against a former employee who is using or threatening to use its trade secrets. The Tenth Circuit recently reaffirmed that, among the requirements for such an injunction, is […]

The advice of legal counsel does not immunize an employer against later employment lawsuit

An Oregon trial court recently held that the advice of legal counsel does not immunize an employer against a later employment lawsuit. The employee lodged complaints involving sexual harassment and workplace safety concerns. The employer consulted with legal counsel, who advised, on the basis of her being an at-will employee, that the employee could be […]

Sexual Harassment Prevention In The American Workplace

In the wake of the many recent sexual harassment scandals, both the Wall Street Journal and New York Times ran major pieces on sexual harassment in the American workplace and its prevention. It’s a particularly difficult challenge in light of the EEOC’s recent study, which produced what EEOC Commissioner Lipnic called a “jaw-dropping moment,” when […]

House passes Joint Employer bill

In previous posts, this blog has reported on legislative efforts to limit the NLRB’s joint employer approach. The House has voted to pass its bill, HB 3441, which now proceeds to the Senate, where supporters will need to find at least 8 Democrats to overcome anticipated filibuster. Source: E:\BILLS\H3441.RH

Curious about the difference between pay claims under the Equal Pay Act versus Title VII?

Title VII is the nation’s leading anti-discrimination law. It prohibits discrimination on the basis of sex (as well as race, color, national origin and other protected classes). One form of prohibited sex discrimination is pay inequity. Another federal law, the Equal Pay Act, also prohibits pay inequities. The Equal Pay Act is relatively uncommon in […]

Labor Secretary Acosta urges Executive Branch restraint

In a recent presentation for the Colorado Bar Association’s 2017 annual conference, I noted the relatively recent proliferation of Executive Branch guidances and other informal publications that have not gone through the formal rulemaking process required for the issuance of regulations. I predicted we will see (from a number of fronts including agencies themselves, the […]

California passes statewide ban-the-box prohibition

California continues to expand its employment laws. As reported in a previous post, California just passed a statewide prohibition against inquiries into pay history. Now, California has joined the growing trend (reported in this previous post) of jurisdictions that prohibit inquiries into an applicant’s criminal history, with its own statewide ban-the-box law (California AB 1008). […]

Trump Administration moves to expand religious — and moral — liberties of employers

President Trump campaigned, in part, on a promise to expand religious liberties. Following up on that promise, his Administration recently announced a series of new changes — changes that have already sparked litigation and are expected to be highly controversial. Many argue these changes are not only highly controversial but come at the expense of […]

California joins growing movement prohibiting pay history inquiries

California has joined a growing number of jurisdictions that prohibit employers from asking applicants about their pay history, with the enactment of a statewide law, effective January 1, 2018. This new law will  prohibit employers from asking applicants about their pay history or even relying upon information about an applicant’s pay history in setting a position’s pay […]

EEOC is about to shift to majority of Republican-appointees

As previously reported, the NLRB recently shifted to a majority of Republican-appointees. Next, with President Trump’s appointments of Janet Dhillon (to be Chair) and Daniel Gade, it will be the EEOC’s turn. Their confirmation (expected by the end of October) will create the first Republican-majority at the EEOC in a decade. President Trump is expected […]

The importance of lit holds

The practice of holding safe evidence relevant to a known claim, especially when that hold is implemented by counsel, is often called a “lit(igation) hold.” Whether or not an actual lit hold is in place, the courts will punish employers who engage in “spoliation.” Four recent federal cases  from Colorado (cited below under Sources) illustrate […]