Entries by Bill C. Berger

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. […]

Supreme Court reverses Ninth Circuit because … “Federal judges are appointed for life, not for eternity”

The Supreme Court reversed the Ninth Circuit’s decision in a potentially landmark Equal Pay Act case, because … “Federal judges are appointed for life, not for eternity.” In this per curiam decision, the Supreme Court, not surprisingly, held that a judge needs to be alive to issue a ruling in a case. How could the Ninth […]

California continues its contortions over arbitration agreements in employment cases

A trio of recent cases illustrateS how federal and state courts in California continue to struggle with their efforts to reconcile the recent pro-arbitration rulings by the Supreme Court with the historically anti-arbitration approach in California. In NBCUniversal Media, LLC v. Pickett, the Ninth Circuit of the U.S. Court of Appeals held that an employee […]

Excited to be a presenter at ASIS Assets Protection Course Practical Applications APCII 6/24-26/19

I’m excited to be a presenter at ASIS Assets Protection Course Practical Applications APCII 6/24-26/19. Come join us in Atlanta! https://www.asisonline.org/professional-development/classroom-programs/asis-assets-protection-course-practical-applications-apcii/?utm_source=Real%20Magnet&utm_medium=Email&utm_term=gene.ferraro@forensicpathways.com&utm_content=02-14%20education%20line-up&utm_campaign=Classroom%20Programs

NLRB limits “Army of One” cases

Taking a cue from the longtime successful ad campaign, labor practitioners refer to a category of NLRB charges as so-called “Army of One” cases. The National Labor Relations Act protected only concerted activity, which generally means two or more people working together, to further their wages, hours and working conditions. In an Army of One […]

Employers should have background check forms reviewed immediately, especially in Ninth Circuit

In a surprising decision, the Ninth Circuit has issued a ruling that an employer violates both federal and California state background check laws when it uses relatively common language. The federal law that governs background checks is the Fair Credit Reporting Act (FCRA). Its California equivalent is its Investigative Consumer Reporting Agencies Act (ICRAA). Both […]

Rat balloon soon to be deflated by NLRB?

Bloomberg BNA reports that the NLRB General Counsel is looking to litigate one of organized labors’ favorite forms of protest: A giant inflatable rat. The effectiveness of the baloon is certainly questionnable, but it is equally undeniable that the presence of one draws attention. Often inflated in the back of a pickup truck, parked lawfully […]

California courts strike non-solicits

Two recent California decisions warrant immediate review by companies that might seek to enforce non-solicitation covenants. The two courts each struck covenants that prohibited former employees from soliciting the company’s employees. The first decision was announced by the California Court of Appeals, which summarized its analysis of the non-solicit at-issue, as follows: Turning to the […]

NLRB not done redefining independent contractors

According to Bloomberg BNA, NLRB Chair John Ring has said the Board may follow up on its recent decision with formal rule making that would produce regulations that detail its independent contractor test. “I think codifying significant parts of our labor code into regulations is one way that we can provide some clarity and predictability,” […]

DOL lifts its 80-20 rule for tipped employees

The Fair Labor Standards Act sets a minimum wage, but it allows employers to take a credit, i.e., pay below the minimum wage, for tipped employees. To prevent abuse of the tip credit, the DOL under President Obama announced its 80-20 rule, which provided that the tip credit was not available, i.e., the tipped employee […]

Reminder to provide compliant sexual harassment and other EEO-related training

As the new year begins, employers should consider reviewing their training regimen. A number of jurisdictions require sexual harassment and/or EEO-related training, including California, Connecticut, Delaware, Maine, New York State, and New York City. Even more encourage employers to provide training, and in all 50 states and the federal judicial system, training is a vital […]

FLSA’s anti-retaliation provisions permit lawsuits against persons, including entities, even if not enterprises within interstate commerce

The Tenth Circuit held that, unlike its other provisions, FLSA’s anti-retaliation provision applies to persons whether or not they are engaged in interstate commerce. In the case, two workers became convinced that their employer owed them overtime under federal law (FLSA, the Fair Labor Standards Act). They complained to the DOL, were fired and the […]

Supreme Court ruled driver wasn’t required to arbitrate

The Supreme Court held that a driver for a trucking company need not arbitrate wage and related claims, even though the driver is technically an independent contractor, not an employee. In reaching its holding, the Supreme Court, first, decided that such driving falls within the Federal Arbitration Act’s exclusion for transportation workers, meaning, the Court […]

NLRB requires unions to state explicitly that they will work not to harm neutral employers when threatening “area standards” picketing

When companies work at the same site or even just near each other, a union — unhappy with one of them — may come to feel that actions at that location — such as that particular employer’s wage or benefit levels — are depressing “area standards.” Unions (like everyone) have a right to protest actions […]

Shutdown shuts down E-Verify

DHS has shut down E-Verify during the pendency of the current government shutdown. DHS explains: E-Verify Accounts Inaccessible While E-Verify is unavailable, employers will not be able to access their E-Verify accounts to: Enroll in E-Verify; Create an E-Verify case; View or take action on any case; Add, delete or edit any user account; Reset […]

Tenth Circuit holds that the False Claims Act protects only individuals who are employed at the time of retaliation

The Tenth Circuit held that the False Claims Act (FCA) protects only individuals who are employed at the time of the alleged retaliation. In this case, the employee left the employer complaining of what she believed were violations of the False Claims Act. She then entered into a settlement, in which she promised not to […]

Impact of Supreme Court’s Janus decision continues to expand, even beyond labor law

Bloomberg BNA published an interesting article looking at the expanding reach of the Supreme Court’s Janus decision in 2018, which held that public employers could not, under the First Amendment, be required to pay union dues or even a service fee. Many have predicted that Janus will have a major impact on unions in America. Its application to unionized […]

D.C. Circuit confusingly has affirmed the Obama Board’s Joint Employer doctrine

The D.C. Circuit has affirmed the Obama Board’s Joint Employer doctrine, which holds that “indirect” control is sufficient to establish Joint Employer status. The rule has proven to be exceptionally controversial and politically sensitive, so much so that the Trump Board has already announced it will be issuing a formal regulatory rule to address the […]

Tenth Circuit reaffirms Adverse Employment Action element of discrimination claims, including failure-to-accommodate claims under the ADA

The Tenth Circuit reaffirmed that plaintiffs must prove they suffered an Adverse Employment Action in all discrimination claims, including claims alleging a failure to accommodate under the ADA. (A)n adverse employment action is an element of a failure-to-accommodate claim  To establish an Adverse Employment Action, the plaintiff must prove more than that she suffered a […]

Fifth Circuit affirms OSHA’s Controlling Employer doctrine

Applying Chevron deference, the Fifth Circuit has affirmed OSHA’s controversial Controlling Employer doctrine, which allows OSHA “to issue citations to controlling employers at multi-employer worksites for violations of the Act’s standards,” even if none of the controlling employer’s workers were exposed. Source: Acosta v. Hensel Phelps Construction Company (5th Cir. 11/16/18). 

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 […]