Entries by Bill C. Berger

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 […]

NLRB majority shifts with confirmation of William Emanuel

On September 25, 2017, the Senate confirmed on a 49-47 vote the nomination of William Emmanuel to the National Labor Relations Board, creating a Republican-majority Board for the first time since 2007. The current Board-constituency will be short-lived as Chair Miscimarra has announced he will retire when his term expires December 16, 2017. He recently […]

New York cracks down on independent contractors

Effective May 15, 2017, New York enacted the “Freelance Isn’t Free Act,” which restricts a company’s right to enter into independent contracts. Restrictions include the requirement for a written contract, full payments within 30 days or by the deadline set forth in the written contract (for payments of $800 or more) and protection from retaliation. […]

Ban the Box laws spread across the country

Looking for a survey of ban-the-box laws (laws that prohibit private employers from asking applicants about criminal histories)? These laws are being debated at every level of the government. With some form of “ban the box” aka “fair chance” legislation in 9 states (Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Island, and Vermont) and […]

State marijuana law not preempted by federal law, at least according to one federal trial court

In the first case of its kind, a federal district court held that Connecticut’s marijuana-permissive law is not preempted by federal law. The case arose when an employer refused to hire the plaintiff after she tested positive for marijuana that she’d been taking for PTSD (in its synthetic pill form, Marinol). Unlike most states’ marijuana-permissive […]

Fifth Circuit rejects aggregation argument in WARN case

WARN (the Worker Adjustment and Retraining Notification Act) is a federal law that requires covered employers to provide 60-day written notice before a covered reduction in force, in particular what it defines as either a “mass layoff” or “plant closing.” To be applicable, WARN requires, among other things, that the layoffs occur at a “single […]

Court strikes Obama-era DOL overtime rules

After issuing a preliminary injunction freezing the Obama-DOL overtime rules in 2016 before they took effect, the same court struck them on August 31, 2017 as unconstitutional, and in so doing expressly held the DOL had acted outside even Chevron authority. The decision, for now, seems to bring an end to the rules, as it […]

Pre-Trump NLRB scores post-Trump win at D.C. Circuit

In 2011, the NLRB announced, in Specialty Healthcare, that a union can ask to represent only some of a company’s workers. This so-called “micro-unit” approach has been heavily criticized as permitting unions to cherry-pick a group of pro-union workers within a group of workers who otherwise would vote “No” on having a union. It has been seen […]

Employer may share in tips if it does not claim a tip credit, at least in Tenth Circuit

The Fair Labor Standards Act (FLSA) is the country’s leading wage-hour law. Among other things, FLSA imposes a federal minimum wage. The federal minimum wage is a baseline; states and local governments are free to adopt higher minimum wages. Employers can, even under federal law, pay tipped employees a lower minimum wage if certain conditions […]

Colorado legislative employment law update 2017

The Colorado legislature has closed out its 2017 session. This year’s crop of new employment laws was relatively mild. Highlights included the following: HB17-1214 enhances the Colorado Office of Economic Development’s ability to facilitate employee ownership of existing business. As owners of many business find themselves wanting to retire from their businesses,  the legislature hopes […]

Trouble for the NLRB’s joint employer doctrine? 

The NLRB famously expanded its joint employer doctrine in its 2015 Browning-Ferris decision. There, the Board effectively eliminated the requirement that a company have actual control to be a joint employer, in other words, it eliminated its decades old “direct and immediate” control requirement. Instead it can be enough now — at least according to the […]

Right-to-work legislation coming to you soon?

In a heavily watched and strenuously litigated case, the Seventh Circuit upheld Wisconsin’s right-to-work statute. The decision is likely to embolden efforts designed to bring right-to-work to every state. Currently, almost thirty states have some form of right-to-work legislation in place. Wisconsin‘s, which follows on the heels of Indiana‘s, were two of the strongest. Both […]

Employer’s attorney may be held liable for retaliating against client’s former employee

In a decision that is already drawing harsh criticism, the Ninth Circuit held that an attorney may be liable to his client’s former employee for retaliation where the attorney contacted federal immigration authorities at U.S. Immigration and Customs Enforcement (ICE) to advise, “if there is an interest in apprehending” the plaintiff, he would be attending a […]

New I-9 form from USCIS

USCIS has issued a new I-9 form. Employers must begin using the new form no later than September 18, 2017, but no need to wait: Employers may begin using the new form before then. Source: Revised Form I-9 Now Available | USCIS

Second Circuit rejects EEOC’s expansive interpretation of Title VII’s “limit, segregate, or classify” clause

Title VII is the nation’s leading anti-discrimination law. Most Title VII cases involve its prohibition against discrimination on the basis of race, religion, sex, etc. Many involve its anti-retaliation provision. But, few involve a clause in Title VII that says employers may not “limit, segregate, or classify” employees based on race, color, religion, sex or […]

Union gripes held not a request to bargain

Unionized employers may not implement unilateral changes to wages, hours and working conditions without first providing the union notice and an opportunity to bargain. A union is not required to bargain at that point. Unions often do not; many unilateral changes are everyday and, for unions, often involve no issue warranting negotiation. In this case, the union, […]

Tenth Circuit holds conflicting arbitration agreements mean no arbitration agreement

The company and a worker entered into six agreements, each of which contained an arbitration provision. While there was no doubt the parties intended to arbitrate any disputes between them covered by the agreements, the arbitration provisions were not identical. They differed in their details. The agreements contain conflicting arbitration provisions. See Aplt. App. 167–87. Suffice […]

SCOTUS grants review in Masterpiece Cakeshop case

In a case that pits religious freedoms against anti-discrimination laws, the Supreme Court agreed today to hear the appeal of a Colorado case against a baker that refused to sell a wedding cake to a same-sex couple.  Hear me (Bill Berger) discussing this development on 850 KOA moments after the order. Source: 062617zor_8759.pdf

Quid Pro Quo and Hostile Work Environment, both, just sexual harassment, by a different name

Federal and state law prohibit sexual harassment. The courts have articulate two common types of sexual harassment: quid pro quo (where someone is asked to provide sex in exchange for a job benefit or punished on the job for not providing sex) and hostile work environment (where someone is subjected to “severe or pervasive” mistreatment […]

Tenth Circuit restates summary judgment test with extensive discussion of multiple ADA and general employment law doctrines

The Tenth Circuit restated the test for granting summary judgment in favor of employers, and in doing so extensively discussed multiple doctrines frequently raised in such motions, including the honest belief doctrine, the adequacy of an employer’s investigation and the reasonableness of requested accommodations. With the regard to the last doctrine, the court noted that, […]

Looking for an update on non-compete law?

The law governing non-competes varies from state to state, and new legislation has brought the federal government into the mix. A recent article provides a helpful overview of the changing legal landscape covering these litigious covenants. Topics include, An overview of new legislation in multiple states; A look at recent court decisions including on the […]

IRS outlines strict rules for PEOs that handle federal employment tax withholdings, reporting and payment for companies

PEOs (Professional Employer Organizations have become an attractive alternative for many companies to administering their own payroll and benefits systems. Many PEOs also handle routine HR functions. The PEO effectively hires the company’s workers and becomes their employer of record. The IRS has issued a new set of rules that tighten up on a PEO’s […]

Tenth Circuit reaffirms Honest Belief doctrine

EEO (equal employment opportunity) laws prohibit discrimination on the basis of race, age, gender, etc., but they do not generally require special treatment. Employers are entitled to make business judgments, and sometimes those judgments involve subjective decisions about whether an employee is adequately performing or likely to adequate perform. Employees in a protected class fail to […]

DOL withdraws its 2015-16 guidance regarding joint employment and independent contractors

On June 6, 2017, the DOL withdrew its 2015-16 guidances regarding joint employment and independent contractors. In doing so, the DOL cautioned, “Removal of the administrator interpretations does not change the legal responsibilities of employers under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act, as reflected in the department’s long-standing […]

NLRB overruled by D.C. Circuit

The D.C. Circuit overruled the NLRB in a case involving a broad range of issues, including Weingarten rights, retaliation, surveillance and coercion. The court’s analysis began with the Weingarten issue. Weingarten is a case that held a union-represented employee may demand a representative be present at any interview where the employee anticipates discipline may follow. Weingarten […]

Denver ordinance increases prevailing wages and penalties for contractors starting January 1, 2017

The Denver City Council passed an ordinance, effective January 1, 2017, increasing prevailing wage rates. Fines more than doubled, and the ability to impose debarment was enhanced. The ordinance extends, now, to contracts using City funds or City-owned or -leased lands, though, language was added to clarify that does not extend to most uses by […]

Plaintiff alleging disability discrimination in hiring case must prove he posseses the objective criteria required of the job

In this case a driver applied for but didn’t get a driving position with the defendant company. He claimed it was because of his disability, cancer, which was in remission. In fact he claimed to have pretty good evidence that his cancer was the reason: He said he’d asked and the company had told him, “Yes,” […]

In a split decision, NLRB stands by its rule requiring production of employee phone numbers

During President Obama’s administration, the NLRB adopted controversial new election rules. Depending on a speaker’s perspective, they are often called either the expedited election rules, the quickie election rules or the ambush election rules. No matter what one calls them, the new rules greatly accelerated the timeline for an election when a union files with […]

Church-affiliated hospitals score major win in ERISA case

Churches may establish benefits plans exempt from ERISA (the Employee Retirement Income Security Act) (the nation’s leading benefits law). The statutory text limits this exemption to plan that are “established and maintained” by a church. Does this exemption also apply to benefits plans established and maintained by a hospital associated with a church? That question […]

Allegedly condescending use of “she” in reference to plaintiff held sufficient to support triable claim of gender discrimination

Discrimination and harassment claims are often supported by a constellation of evidence designed to show that the employer’s proffered legitimate business reason for discipline or discharge was in fact a pretext for discrimination. In this case, the First Circuit held a supervisor’s use of “she” in a condescending tone to refer to the plaintiff was, […]

Sixth Circuit joins the “robust debate” regarding enforceability of arbitration agreements, class actions and section 7 of the NLRA

The Sixth Circuit joined what it understatedly called a “robust debate” regarding the enforceability of mandatory pre-dispute arbitration agreements that do not permit class actions. The courts are split. The NLRB takes the position that such agreements violate section 7 of the National Labor Relations Act, the nation’s leading labor (union-related) law. Section 7 is […]

Ninth Circuit reaffirms broad view of enforceability of EEOC subpoenas

The Ninth Circuit reaffirmed its broad approach to the enforceability of EEOC subpoenas in a case where the employer had already produced sufficient information to analyze the company’s practice at-issue. Although the company pointed out the EEOC did not require the information to perform the desired statistical analysis of its “physical capability strength test,” the […]

Second Circuit OK’s profanity in the workplace

In a controversial case, the Second Circuit affirmed the NLRB’s decision that profanity – profanity any reasonable employer would arguably not permit in its workplace – must be permitted in the workplace. This stunning decision was rendered under Section 7 of the National Labor Relations Act, which is a section of that law that applies to […]