Entries by Bill C. Berger

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 […]

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 […]