Confused about CDC’s new position for fully vaccinated people and what it means for masks and social distancing in the workplace? Looking for a template memo to your employees?

SHRM has released a couple of interesting memos that HR professionals might consider as a starting point when thinking about the CDC’s new guidance for fully vaccinated people and what it means for masks and social distancing in the workplace. SHRM has released one template memo it suggests for employers looking to allow fully vaccinated people to take advantage of the CDC’s new guidance, which effectively says in most situations such people need no longer wear masks or socially distance, and another template for employers looking, instead, to require all workers, including those who are fully vaccinated, to continue to wear masks and socially distance. Neither memo is probably the Goldilocks fit for any particular employer, but together they provide a good place to start brainstorming. Employers are reminded to consult with experienced legal counsel on these issues.

As federal, state and local mandates begin to loosen, will employers face a “turnover tsunami”?

According to a recent article in the Denver Business Journal, employers may be facing a “turnover tsunami” with an estimated “26% of workers  plan(ning) to look for a job with a different employer once the threat of the pandemic decreases.” The article offers helpful tips for companies considering how to attract and keep talent.

EEOC opens portal for filing EEO-1 Component 1 data

Delayed in 2020 so that HR professionals would not have to go into their workplaces during the start of the pandemic, the EEOC has now opened its portal for filing EEO-1 Component 1 data.  The deadline for filing Component 1 data is July 19, 2021. The EEOC announced the opening of its portal, as follows:

Update:  2019 and 2020 EEO-1 Component 1 Data Collection is NOW OPEN

After delaying the opening of the 2019 EEO-1 Component 1 data collection because of the COVID-19 public health emergency, the EEOC has announced that the 2019 and 2020 EEO-1 Component 1 data collection is NOW OPEN.  Eligible employers have until Monday, July 19, 2021 to submit two years of data.

Filers should visit the newly launched EEO-1 Component 1 website at https://EEOCdata.org/eeo1 for the latest filing updates and additional information.  By visiting the Filer Support Center located at https://EEOCdata.org/eeo1/support, filers can request assistance as well as find helpful resources, including fact sheets and FAQs.

Employers are reminded that Component 1 data is the demographic data that employers have been used to filing with breakdowns by various protected classes. In contrast Component 2 data was the paydata previously and controversially under consideration.

Generally, it is larger employers and government contractors who are required to file, as the EEOC explains here:

The following companies are required to file the EEO-1 Component 1 Report annually:

  1. Private employers who are subject to Title VII of the Civil Rights Act with 100 or more employees.
  2. Private employers subject to Title VII affiliated through common ownership and/or centralized management with other entities in an enterprise with a total employment of 100 or more.
  3. Federal government prime contractors or first-tier subcontractors subject to Executive Order 11246, as amended who are not exempt as provided for by 41 CFR 60-1.5, with both 50 or more employees and a prime contract or first-tier subcontract amounting to $50,000 or more.
  4. Employers that serve as a depository of Government funds in any amount or as a financial institution which is an issuing and paying agent for U.S. Savings Bonds and Savings Notes and have 50 or more employees.
Only those establishments located in the District of Columbia and the 50 states are required to submit an EEO-1 Component 1 Report. No reports should be filed for establishments in Puerto Rico, the Virgin Islands, or other American Protectorates.

State and local governments, public primary and secondary school systems, institutions of higher education, American Indian or Alaska Native tribes and tax-exempt private membership clubs other than labor organizations are also exempt from the EEO-1 Component 1 Report. However, non-profits and not for profit organizations are required to file the EEO-1 Component 1 Report.

White House clears path for offers of paid time-off for vaccinations

The White House announced a tax credit for companies who wish to offer paid time-off for employees to be vaccinated. The credit is available to employers with fewer than 500 employees, and permits up to 80 hours/10 days of paid time off, up to $511 per day.

This new credit is not only welcome for employers seeking to avail themselves of it, but it also helps alleviate confusion over an employer’s ability to offer pay for time-off to be vaccinated.

Tenth Circuit holds employer need not, under ADA, accommodate challenges that an employee’s disability imposes “outside the workplace unrelated to an essential function or a privilege of employment”

The Tenth Circuit recently decided a case involving an employee who required a flexible work schedule to do her job. She suffered from a disability related to her vision. She lived 60 miles from the workplace and relied on family and friends for rides to and from work. Her ability to make it to work on time proved a challenge. The company attempted to allow her to work a flexible work schedule, but that also proved unsuccessful, when her actual schedule became “erratic,” which “contributed to low patient satisfaction scores,” “less than stellar” performance evaluations. She sked the company to continue allowing her the flexible work schedule or even to work remotely full time. The company declined.

The Tenth Circuit held that her request to work remotely or on a flexible work schedule would, if granted, have accommodated “her transportation barrier (which was) a problem she faces outside the workplace unrelated to an essential job function or a privileged of employment.” The company could not control where she lived or when she was able to find rides with friends or family. She was in that sense like all employees, whether disabled or not, and nothing in the ADA imposes on an employer the obligation to grant accommodations that solve workers’ personal off-duty challenges. “(E)mployers have no obligation under the ADA to accommodate disabled employees for problems they face outside the workplace unrelated to the essential job functions of their positions or privileges of employment merely because they are disabled.”

Together with another recent Tenth Circuit case, the decision suggests how the courts may approach litigation that may arise as a result of the impact of the coronavirus pandemic on the workplace.

Source: Unrein v. PHC-Fort Morgan, Inc., — F.3d — (10th Cir. 4/8/2021).

American Rescue Plan Act extends and expands federal tax credits available for coronavirus-related leave

SHRM recently published an article summarizing ARPA (the American Rescue Plan Act). In short, employers with fewer than 500 employees currently may but are not required by federal law (compare for example state laws such as in Colorado) to provide paid leave for certain coronavirus-related reasons and, if such an employer does chose to provide such leave, it may pass through costs to the federal government. Those rules expired first December 31, 2020, then were extended through March 31, 202. Now according to ARPA, the ability for an employer to pass-through covered costs has been extended through September 30, 2021. ARPA not only extends the period when costs can be passed through to the federal government, but expands the reasons for which such leave may be granted to, now, include time off to be vaccinated and time off while waiting for the results of an employer-mandated covid-19 test. Employers are encouraged to contact their tax professionals for further information.

CDLE issues an on-demand webinar on Colorado’s new paid leave law known as HFWA

Looking for an overview of Colorado’s new paid leave law known as HFWA (the Healthy Families and Workplaces Act)? To get a better sense of how the CDLE (Colorado Department of Labor and Employment) interprets HFWA? How it will relate to Proposition 118, which will become an entirely new and different paid leave program in Colorado (to be phased in starting as early as next year)?

Check out the CDLE’s newly released, free on-demand webinar, available on YouTube. The CDLE also released its slides for the webinar. PRO TIP: Don’t just read the slides. Check out the webinar, especially the Q&A session following the presentation of the slides. There were some good questions asked that other employers may have about HFWA as well.

Be sure to also check the CDLE’s rulemaking page for its rules re HFWA and its poster page for the required HFWA poster (in English and multiple other languages).

NLRB confirms unionized employers may adopt handbook

In Stericycle, Inc., 370 N.L.R.B. No. 89 (2/17/2021), the NLRB held that an employer may adopt and issue handbooks to its workforce, including unionized bargaining unit members, even where that language on its face is contrary to the union’s collective bargaining agreement, so long as it does not purport to apply that inconsistent language to the bargaining unit. In Stericycle, the company had not historically distributed its handbook to the union’s bargaining unit members. There had been two versions of the handbook over the years, and neither had been given to those workers. When a third was developed, its distributees did include the bargaining unit workers.  Unfortunately the handbook did not contain a clear disclaimer that the CBA would control in the case of any conflict with the CBA; rather, it contained a disclaimer to the effect that “some benefits may not apply to union team members and in some cases the policies may be impacted by collective bargaining agreements.” The union claimed its bargaining unit employees were indeed “impacted,” as the union pointed out many policies were contrary to the CBA. To complicate the situation further, the company had not involved the union or even given the union notice and an opportunity to discuss the handbook before implementing it. In a hotly split decision, the Board voted to reverse the lower decision and held that the company had not violated the NLRA, reasoning that the company’s disclaimer language was clear enough to suggest that the CBA would control and further that the union had failed to produce any evidence that the company had intended otherwise.

Seventh Circuit holds that employers may have to provide paid USERRA leave if it provides pay for other comparable leaves

USERRA is the federal military leave law that requires employers to provide workers time-off for military-related leaves. USERRA leave is generally unpaid. However USERRA, sec. 4316(b),  provides that employees must receive “such other rights and benefits not determined by seniority as are generally provided by the employer of the person to employees having similar seniority, status, and pay who are on furlough or leave of absence under a contract, agreement, policy, practice, or plan in effect at the commencement of such or established while such person performs such service.”

The Seventh Circuit recently held in a case involving United Airlines that sec. 4316(b)’s “other rights and benefits” language includes “comparable” paid leave. The Seventh Circuit looked to DOL regulations, 20 CFR 1002.150(b), that explain paid leave is “comparable” and must be provided to USERRA leave-takers if is is comparable in terms of “the duration of the leave,” as well as “the purpose of the leave and the ability of the employee to choose when to take the leave.” However, it cautioned as to the last factor — the ability to schedule leave — an employee’s voluntary decision to enlist should not be considered.

Did United Airlines owe its pilot pay for time he took off for “periodic military-training sessions” under its jury duty policy, its sick leave policy or any of its “other short-term” paid leave policies? The Seventh Circuit held it did not have sufficient evidence to weight the comparability of such leaves; therefore, it remanded the case back to the trial court for further consideration.

Source: White v. United Airlines, Inc., — F.3d —, 2021 WL 365210 (7th Cir. 2/3/2021)

Fun morning on 850 KOA talking about Impeachment 2.0

Fun morning today talking about the legal issues involved with the second impeachment trial of former President Trump, including the Senate’s jurisdiction over a former official and the First Amendment.

Tenth Circuit rejects argument that statutory offer of settlement in Colorado impliedly released other claims much less future lawsuits

Colorado law, CRS 13-17-202, allows defendants in litigation to make what is called a statutory offer of settlement. In a statutory offer of settlement, a defendant in litigation may offer to pay the plaintiff a certain amount in settlement of the claims being litigated, which, if not accepted, the plaintiff must beat at trial, in other words, not only win at trial but obtain an even greater award in the verdict, otherwise the plaintiff becomes liable for the defendant’s actual costs. Colorado law provides that the offer of settlement may not include any other non-monetary term; it must be a pure offer to settle for a sum certain.

In this case, the plaintiff sued his former employer in Colorado’s federal court, alleging wrongful discharge. The defendant extended an offer of settlement in the amount of $100,000.00. The company advised he accepted the offer but noted that he waived no other rights, including the right to bring future lawsuits. The company said, wait, not so fast, it had intended its offer of settlement to require the plaintiff to settle all claims he might have had “without any qualifications.”

Although that was the company’s asserted intent, the Tenth Circuit noted that the company failed to say in its offer of settlement that other lawsuits and claims needed to be released. Further the Tenth Circuit noted, even if it had, that Colorado statutory offer of settlement process does not permit non-monetary terms to be included in the offer. Thus, the Tenth Circuit rejected the defendant’s argument.

Furthermore, the Tenth Circuit rejected the trial court’s analysis of the issue as well. The trial court had ruled that the plaintiff and his former employer had failed to reach a “meeting of the minds.” The Tenth Circuit held that Colorado’s statutory offer of settlement process did not require a “meeting of the minds” or even judicial involvement for the settlement to be effective. Rather, the statutory process required merely that a defendant extend an offer under CRS 13-17-202, which the Tenth Circuit held this company had, and that, within the statutory deadline, the plaintiff accept that offer, which the Tenth Circuit held this plaintiff had. At that point, the settlement was effective: the company owed plaintiff $100,000; in exchange the plaintiff’s claims in that lawsuit should have been dismissed as settled; however, no other settlement or release occurred, thus the company was indeed at risk that plaintiff might file future lawsuits.

It is noted that the company may still have some protection against future litigation. Under different principles (including claim preclusion, issue preclusion and res judicatta), the settlement and dismissal with prejudice of one lawsuit precludes the assertion of the same claims or substantially similar related claims.

Source: Oldenburg v. American Motor Insurance Co., Inc., — F.3d —, case no. 20-1209, 2021 BL 25071 (10th Cir. 1/26/21).

Executive Order 13950 frozen

President Trump’s Executive Order 13950, which had sought to limit diversity and inclusivity training, especially as to implicit bias topics, has been frozen by a federal court, and now, as a result, the DOD and DOL have agreed that the federal government will no longer enforce the Executive Order.

Tenth Circuit previews likely ruling when employers require return-to-work following pandemic

A recent Tenth Circuit decision previews courts’ likely analysis when employers begin requiring workers to return to the workplace following the eventual end of the pandemic. In the case, the Court held that making a “transitional duty” permanent is not a reasonable accommodation — in other words is not required by the ADA — especially where it would eliminate an essential function of the worker’s position.

The Court used the phrase “transitional duty” to refer to the employer-prison’s temporary assignment of a disabled worker to relatively light duty that consisted of “sedentary” tasks in the “control room.” The prison provided the transitional duty only as a temporary accommodation of his arthritis pending hip surgery after which he was expected to return to his regular duties as a correctional officer. It was undisputed that the regular duties of a correctional officer included the ability to defend oneself, which he could not do absent successful recovery from surgery. When the temporary transitional duty ended and he was still unable to work as a correctional officer, his employment was terminated. He sued claiming that the ADA required the prison to convert the transitional duty into his permanent assignment. The prison responded and the Tenth Circuit agreed that making his temporary accommodation permanent would not have been a reasonable accommodation, in other words, was not required under the ADA. His job was to work as a correctional officer; the transitional duty was merely a temporary effort to respond to his arthritis and need for surgery.

Just as having permitted that correctional officer to work in the control room was merely a temporary response to the circumstances at the time, one that the ADA did not require to be made permanent, so, now in the context of the pandemic, allowing employees to work remotely, temporarily during the pandemic, does not open the door to ADA lawsuits claiming to make remote-work permanent, at least where attendance is itself an essential function of the job. Readers are reminded that the EEOC similarly recently opined that temporarily eliminating an essential function, in response to specific circumstances such as the pandemic, does not require that elimination to be made permanent under the ADA (or Title VII).

Source: Mannan v. Colorado, 2020 BL 493234, 2020 Us App Lexis 39822 (10th Cir. 12/18/20).

First Circuit strikes union bargaining unit with no members

Although the Board can recognize protected activity by one worker under the “Army of One” theory, it may not certify a union to represent a bargaining unit with no members, held the First Circuit. In the case, the union petitioned to represent a group of workers, and eventually won the right to do so, but by the time the Board certified the bargaining unit, the unit’s work had ended, there were no more such workers and the evidence confirmed there would be no more such workers. While Board precedent allows a certification for a unit of none in unusual circumstances where such work might resume (for example, in some seasonal worker cases), the First Circuit held it does not permit certification when there is no such likelihood.

Source: NLRB v. Wang Theatre, Inc., case no. 20-1157 (1st Cir. 11/30/2020).

DOL final rules re gig workers and other independent contractors, likely DOA

In an apparently symbolic statement, the DOL issued its long-waited final rule re gig workers and other independent contractors. The rule purports to provide clearer, more pro-business provisions regarding independent contractor classifications. The DOL has summarized its final rule, as follows:

In the final rule, the Department:

  • Reaffirms an “economic reality” test to determine whether an individual is in business for him or herself (independent contractor) or is economically dependent on a potential employer for work (FLSA employee).
  • Identifies and explains two “core factors” that are most probative to the question of whether a worker is economically dependent on someone else’s business or is in business for him or herself:
    • The nature and degree of control over the work.
    • The worker’s opportunity for profit or loss based on initiative and/or investment.
  • Identifies three other factors that may serve as additional guideposts in the analysis, particularly when the two core factors do not point to the same classification. The factors are:
    • The amount of skill required for the work.
    • The degree of permanence of the working relationship between the worker and the potential employer.
    • Whether the work is part of an integrated unit of production.
  • The actual practice of the worker and the potential employer is more relevant than what may be contractually or theoretically possible.
  • Provides six fact-specific examples applying the factors.

However, the DOL waited too long to issue its final rule for it to become effective. The regulatory rulemaking process provides that such rules do not become effective until at least 60 days following their publication (this rule was published 1/6/2021). In the interim President Elect Joe Biden will be inaugurated. The incoming Biden Administration has already announced that it will immediately freeze this and any other so-called “midnight” regulations. It is not clear why the Trump Administration, knowing the rulemaking process, chose to wait too long to issue this rule.

Colorado wage transparency equal pay requirements, sample job postings?

Effective January 1, 2021, as previously discussed, including in this firm’s recent on-demand complimentary webinar, Colorado employers — and out-of-state employers posting within Colorado even by the Internet — face new requirements that include having to post a good faith range of wages and a general description of benefits in all job opening postings. These new laws also impose (internal) promotional-opportunity notice obligations, which in turn also include obligations to disclose wage and benefit levels. Employers are reminded they block pay-history questions, and that another recent Colorado law includes ban-the-box prohibitions that now according to recent guidance by the CDLE prohibit saying “background checks required.” How are employers complying? A first-day review of sample Internet job postings on sites such as Indeed and Monster suggest at least some employers are posting along the following lines:

Job title

Business-name

City, CO

$x-$y (where so far the most common range seems to spread across a difference ($y-$x) of $5-10,000 for salary and $2-4 for hourly positions)

General description of position, like “Acme corp  is hiring managers to oversee an exciting team of workers to do such-and-such work”

Bonus incentives available

Medical, dental and vision elections available

401(k) with company match

Is that sufficient? Are pay ranges greater than $5-10,000 too much? At least one public posting had a spread of almost $50,000, is that too much, could it be based on a “good faith’ estimate of actual pay? Must bonus disclosures include more information than that, must they state a good faith estimated dollar range? Stay tuned as postings eventually begin to face scrutiny by the CDLE and courts.

DOL updates its Field Assistance Bulletin to confirm that teledoc visits may qualify as medical visits under the FMLA

HR professionals are already well aware that the FMLA is triggered by, among other things, a “serious health condition,” which, oversimplifying, consists of (1) overnight “inpatient care” such as in a hospital, as well as “any period of incapacity” following such inpatient care and (2) “continuing treatment by a health care provider.” The FMLA regulations define the term “treatment” to include “examinations to determine if a serious health condition exists and evaluations of the condition.” See 29 CFR § 825.113(c). And further confirm that only “an in-person visit to a health care provider” will count towards considering “continuing treatment.” See 29 CFR § 825.115(a)(3).

Now, as so-called telemedicine (aka, “teledoc”) appointments become more popular, especially during the current pandemic, the DOL just updated its Field Assistance Bulletin to confirm that some teledoc appointments may count in-person “continuing treatment.”

To be considered an “in-person” visit, the telemedicine visit must include:
• an examination, evaluation, or treatment by a health care provider;
• be permitted and accepted by state licensing authorities; and,
• generally, should be performed by video conference.

EEOC issues guidance on vaccines

The EEOC issued guidance on vaccines, as subpart K of its Technical Assistance (FAQ) regarding coronavirus. The EEOC’s FAQ is not regulatory, it does not carry the weight of law, and it did not reach any specific conclusions. Rather, it included the EEOC’s current thinking that:

  • It may become possible, as vaccines begin to be available, for an employer to mandate vaccination as a condition of entry into the workplace if the company can establish business necessity and that failure to impose the requirement would pose a direct threat of harm to others or that employee’s own health.
  • The EEOC noted it may or may not also be possible for an employer to mandate vaccination as a condition of employment. In other words, the EEOC said that, while some employers may be able to require vaccination as a condition of physically entering the workplace, to terminate an un-vaccinated employee would require a higher showing to prove business necessity and direct threat. For example, such an employer would have to prove the inability to allow the worker to take leave, to work remotely, etc.
  • In both instances, an employer would have to provide a reasonable accommodation for an employee who declines vaccination
    • Regarding a disability, under the ADA, unless the employer can prove undue hardship, i.e., that “there is no way” to allow the worker into the workplace or just to keep their job without the vaccine, to take leave, if not even to work remotely, and/or
    • Regarding a sincerely held religious belief, under Title VII, unless it would impose more than a de minimis cost or burden to the company to provide such an accommodation.

The EEOC recommends that employers consider, in all circumstances, using a third-party medical contractor that expertly advise workers, obtain informed consent, and manage any questions as well as the administration of the vaccine, and the exchange of any information regarding genetics, within medical confidentiality, such that the worker would, once vaccinate, simply provide the company with documentation of having been vaccinated, ensuring no confidential information is shared with the company.

Employers should first be aware that the EEOC does not have jurisdiction over and did not opine on other federal or state laws, which may well be thornier restrictions for employers who feel required vaccines are needed in their workplaces. Further, multiple states have already begun the process of debating whether to legislate or simply regulate in this area.

Finally, it should be noted that the EEOC was discussing vaccines that have been “approved or authorized” by the FDA. Currently no vaccines have been “approved” by the FDA, some have received an emergency use “authorization.” The EEOC did not discuss the fact that, in the fact sheet supporting the current authorizations, the FDA specifically stated: “It is your choice to receive or not receive the Pfizer-BioNTech COVID-19 Vaccine.” While that statement seems to be limited to a patient’s choice in terms of their own medical care — not their employment rights — that statement’s importance has not yet been analyzed by the EEOC (or the courts).

DOL issues final rule on tip-pooling

The DOL has issued its final rule regarding tip-pooling. The DOL explains its revisions, as follows:

In this final rule, the Department:

  • removes the portions of the regulations that prohibited employers that do not take a tip credit from implementing mandatory “nontraditional” tip pools—that is, tip pools that include employees who do not customarily and regularly receive tips;

  • explicitly prohibits employers—regardless of whether they take a tip credit—from keeping employees’ tips for any purpose, which includes prohibiting managers and supervisors from keeping tips received by employees;

  • amends its regulations to state that an employer that collects tips to facilitate a mandatory tip pool must fully redistribute the tips no less often than when it pays wages to avoid “keep[ing]” the tips in violation of section 3(m)(2)(B);

  • incorporates the CAA’s new requirements regarding civil money penalties (CMP) into its regulations and revises additional portions of its CMP regulations to address courts decisions that have raised concerns;

  • incorporates a new recordkeeping requirement for employers that do not take a tip credit but collect employees’ tips to operate a mandatory tip pool;

  • codifies recent guidance explaining that an employer may take a tip credit for time that an employee in a tipped occupation performs related non-tipped duties either contemporaneously with or for a reasonable time immediately before or after performing tipped duties; the final rule also states that, in addition to the examples listed in the regulation, a non-tipped duty is presumed to be related to a tip-producing occupation if it is listed as a task of the tip-producing occupation in O*NET;

  • amends the regulations that address the payment of tipped employees under Executive Order 13658 (Establishing a Minimum Wage for Contractors) to reflect the corresponding changes in the FLSA regulations and to otherwise align those regulations with the Executive Order.

CDLE issues yet more rules, now confirming the need to provide a fresh 80 hours of pandemic leave starting January 1, 2021

The CDLE has issued a new batch of rules and INFO sheets #6B and #6C confirming the need, in Colorado, to issue a fresh 80 hours of pandemic leave. In other words, an employee who has used, for example, 70 of their current 80 hours, will have their remaining 10 hours zeroed out at the close of 12/31/2020, then at the beginning of 1/1/2021, they will need to have their available paid leave requirements augmented to permit a fresh 80 hours; an employee who has used 10 of their current 80 hours, will likewise have their remaining 70 hours zeroed out and be given a fresh 80 hours as well. INFO 6C explains the basis for the requirement to provide this fresh 80 hours, and INFO 6B explains the basic requirements of Colorado 48-hour and 80-hour paid leave requirements under HFWA.

Employers should consider providing all Colorado employees with a copy of the CDLE’s poster and an explanatory memo. As explained in a previous post, employers should carefully craft the language of their memo to meet the other requirements posed in the CDLE’s HFWA rules.

DOL expands religious exemption from EEO laws to federal contractors even if closely-held corporations

Continuing to expand on religious exemptions from EEO laws recognized by both the Supreme Court and itself, the DOL has expanded, in a final rule applicable to federal contractors, the religious exemption to now include even closely-held corporations so long as the company qualifies as a religious organization.

To qualify as religious a corporation, association, educational institution, society, school, college, university, or institution of learning may, or may not: have a mosque, church, synagogue, temple, or other house of worship; or be supported by, be affiliated with, identify with, or be composed of individuals sharing, any single religion, sect, denomination, or other religious tradition.

As an example, the DOL gives, in its rule, a small business that makes candlesticks for churches:

41 CFR 60-1.3(4)(i)(A) Example. A closely held for-profit manufacturer makes and sells metal candlesticks and other decorative items. The manufacturer’s mission statement asserts that it is committed to providing high-quality candlesticks and similar items to all of its customers, a majority of which are churches and synagogues. Some of the manufacturer’s items are also purchased by federal agencies for use during diplomatic events and presentations. The manufacturer regularly consults with ministers and rabbis regarding new designs to ensure that they conform to any religious specifications. The manufacturer also advertises heavily in predominantly religious publications and donates a portion of each sale to charities run by churches and synagogues.

Will employers be able to mandate vaccines?

Wondering if employers will be able to mandate vaccines? Long story, short, we don’t yet fully know. It is likely that employers will be able to mandate vaccines — at least as a condition of entry into some workplaces if not as a condition of continued employment — so long as it is required by a business necessity and so long as appropriate opt-outs are permitted especially for religious or disability reasons. Employers with unionized workforces may need to engage in bargaining with their unions, first, unless clear and unmistakable language in the CBA already allows unilateral action. However, federal and state officials throughout the country have said they are currently analyzing the issue and hope to issue guidance soon.

In the meantime, if you’re looking for a couple good reads on the subject as an introduction to these issues, you may want to start with two thought pieces on the issues: one by Holland & Hart attorney Brad Williams available here and the other by SHRM available here. With regard to just the EEO laws, especially Title VII’s religious protections and the ADA’s disability protections, interested readers may also like to review the EEOC’s 2009 thoughts from the H1N1 pandemic, especially question 13. Again, though, hopefully the EEOC, along with the DOL and the various state and local agencies, will all be updating their guidance shortly within the context of the current coronavirus pandemic.  

Stay tuned for future updates as guidance becomes available. 

Hah-hah, just kidding. Not so much, says Board

The National Labor Relations Board held a company in violation for its CEO’s joke on the CEO’s personal Twitter stream. The CEO of the company posted, “FYI (company twitter handle) first one of you tries to unionize I swear I’ll send you back to the salt mine.” The employees who submitted evidence agreed the tweet was a joke. The Board disagreed and held the tweet was on its face a threat of anti-union retaliation, even if cloaked in a purported joke.

“In viewing the totality of the circumstances surrounding the tweet, this tweet had no other purpose except to threaten the (company’s) employees with unspecified reprisal, as the underlying meaning of ‘salt mine’ so signifies.”

The company argued that the CEO had a First Amendment right to speak on his personal Twitter account, and the Board agreed but noted, in footnote 9, that the First Amendment does “not extend to threats made by employers to workers” in violation of the NLRA.

Source: FDRLST Media, LLC, 370 NLRB No. 49 (11/24/2020).

CDLE issues more new information for Colorado employers

Implementing its most recent batch of rules on a variety of topics, the CDLE just issued yet more information for Colorado employers on those topics.

Are your ready for January 1, 2021?

  • Looking for more information about the CDLE’s latest batch of rules?

Join us for a complimentary, engaging and interactive webinar.

L2S Legal, LLC is recognized by SHRM to offer SHRM-CP or SHRM-SCP professional credits (PDCs). This program is valid for 1.0 PDCs.

When: Wednesday, December 16, 2020 Noon 12:00 PM Mountain Time (US and Canada) 

Register in advance for this webinar: https://us02web.zoom.us/webinar/register/WN_vGmrkeFcQ6iaM26Hg3iMGQ 

After registering, you will receive a confirmation email containing Zoom’s information for joining the webinar.

Where to find the CDLE’s latest information

The Colorado Department of Labor and Employment’s latest information is available at its website.

As noted in recent posts on this blog, look for the CDLE’s latest rules on its Rulemaking page, to include the following rules:

  • Colorado Overtime And Minimum Pay Standards (“Comps”) Order #37, 7 CCR 1103-1;
  • Wage Protection Rules, 7 CCR 1103-7;
  • Direct Investigations Rules, 7 CCR 1103-8;
  • Colorado Whistleblower, Anti-Retaliation, Non-Interference, And Notice-Giving (“Colorado Warning”) Rules, 7 CCR 1103-11;
  • Colorado State Labor Relations Rules, 7 CCR 1103-12; And
  • Equal Pay Transparency Rules, 7 CCR 1103-13.

Look for its latest posters on the CDLE’s Poster page (the following list is quoted from CDLE)

  • The “Colorado Overtime and Minimum Pay Standards” (“COMPS”) poster and notice, covering wage and hour law — see COMPS Rule 7.4, Posting and Distribution Requirements, unchanged from the 2020 COMPS Order, which requires employers to display the annually revised poster (and send it to off-site employees), plus include either the poster or COMPS itself in any handbook or manual the employer has.
  • The “Colorado Workplace Public Health Rights Poster: Paid Leave, Whistleblowing, & Protective Equipment” poster and notice, covering HFWA and PHEW since their enactment in July 2020 — see Colorado WARNING Rule 4, Notice and Posting Rights and Responsibilities, unchanged from the temporary WARNING Rules in effect since September 21, 2020, which requires employers to post and give employees notice of these rights.
  • Translations of posters and INFOs — to implement requirements for employers to provide posters and notices to non-English-fluent workers, DLSS in 2020 posted translations of its posters in 12 languages and Spanish translations of INFOs (on the same pages as the English posters and INFOs), with new translations of the 2021-updated posters to be posted later this month, and translations of INFOs coming thereafter.
  • With translations into Spanish and other language.

Look for informational summaries on the CDLE’s INFO page, where the CDLE provides the following information summaries (again quoting the CDLE):

  • INFO# 1: Colorado Overtime &, Minimum Pay Standards Order (COMPS Order) #37 [In Spanish:Hoja Informativa y Opinión Formal (INFO por sus siglas en inglés) # 1: Orden de COMPS #37] (Próximamente)
  • INFO# 2:DLSS Wage Claim Investigation Process
  • INFO# 3: Tips (Gratuities) and Tipped Employees Under Colorado Wage Law
  • INFO# 4: Meal and Rest Period
  • INFO# 5: Public Health Emergency Whistleblower Rights [In Spanish:Hoja Informativa y Opinión Formal (INFO por sus siglas en inglés) # 5: Ley de Protección al Denunciante de Emergencias de Salud Pública] (Próximamente)
  • INFO# 6A: Paid Leave Under the Healthy Families and Workplaces Act, through December 31, 2020 [In Spanish:Hoja Informativa y Opinión Formal (INFO por sus siglas en inglés) # 6A: Pago por Ausencia Laboral bajo el Acta de Familias y Lugares de Trabajos Saludables, vigente hasta el 31 de diciembre, 2020]
  • INFO# 6B: Paid Leave Under the Healthy Families and Workplaces Act, as of January 1, 2021 [In Spanish:Hoja Informativa y Opinión Formal (INFO por sus siglas en inglés) # 6B: Pago por Ausencia Laboral bajo el Acta de Familias y Lugares de Trabajos Saludables, a partir de 1º de enero] (Próximamente)
  • INFO# 7: Payment of Wages & Required Record-Keeping
  • INFO #8: Colorado Chance to Compete Act (“Ban the Box”)

The CDLE also invites interested individuals to sign up for the agency’s email alerts.

Highlights from the CDLE’s latest information

In recent posts, this blog has summarized a number of the CDLE’s latest rules. Some of the highlights from this most recent information just posted by the CDLE implementing its new rules includes the following:

  • INFO #1: The new hourly minimum wage in Colorado will be $12.32. The new minimum guaranteed salary for exempt workers will be $40,500.
    • Employers are reminded they must distribute a copy of the COMPS poster or the entire COMPS Order 37 (new for this year) with any policies/handbooks that are being distributed otherwise. Signatures must be obtained.
  • INFO #4: The CDLE has taken a strict approach to meals and rest periods, summarized in INFO #4.
    • Employers are responsible for not only “authorizing” workers to take breaks, but they must “permit” them to do so, and CDLE explains a rest break is “authorized” if the company has an adequate policy for example, but even if “authorized,” it is not “permitted” if the employee is “unable or discouraged” to take the break. Evidence that the employee is not “permitted” to take a break may simply be the employee’s own statement that they “felt pressure from the employer not to take the break.
    • It is the employer’s obligation, not the employee’s, to track and record and keep records of employee breaks. An employer cannot simply say it assumed the breaks were being taken as “authorized” where an employee claims not to have been “permitted” to take the break.
    • When a break is missed, it counts as work time, must be paid as such, even if that triggers daily or weekly overtime.
  • INFO #5: In its rules and now in its INFO implementing Colorado’s new PHEW law (already in effect), the CDLE has take the position that an employer who provides no PPE (mask) in a time of a public health emergency may not prohibit an employee from using an unsafe mask. PHEW allows employers to prohibit employees from using masks that do not meet the company’s requirements, only if — according to the CDLE’s interpretation — the employer has first provided its own mask to the worker. Employers should consider making appropriate disposable masks available in their workforces, so that they can later prohibit inappropriate masks that employees might otherwise wish to wear.
  • INFO #7: The CDLE summarized rules regarding the payment of wages, the establishment of pay periods, payment of final wages at separation, pay statement requirements and recordkeeping requirements.
  • INFO #8: The CDLE explained Colorado’s new ban-the-box law. Companies may not state in job applications or advertisements “that a person with a criminal history may not apply,” nor ask about the person’s criminal history on an application, nor require the applicant to disclose any criminal history on the application. Additionally, the CDLE says this prohibits an employer from stating that background checks will be required. Although an employer may require background checks as part of a conditional offer of employment, that may not be stated in an application or advertisement. The CDLE explains the limited exceptions available where employers are otherwise required by law to inquire into these matters.

CDLE finalizes new WARNING rule

As noted in a prior blog post, the CDLE has finalized a crop of new rules on a variety of topics. This post addresses its WARNING (Whistleblower, Anti-Retaliation, Non-Interference, and Notice-Giving) Rules, effective January 1, 2021.  The WARNING Rules implement Colorado’s new whistleblower and related notice laws. Highlights of the rules include the following:

  • An explanation of the posting obligation that requires employers to post the state’s HFWA poster  with translations available from the CDLE for any languag espoken by at least 5% of the workforce in a conspicuous location in each workplace where individuals work, such as bulletin boards or break rooms, by time clocks or at entrances. In the event that is not possible Rule 4.1.4 describes a process for providing the actual poster to each new hire or on “a web-based platform.”
  • An explanation of the “reasonable” and “good faith” requirements a whistleblower must meet to be protected, to include under Rule 5.1.2 a statement by the worker, without necessarily citing a specific rule or guideline, “what action, condition, or situation they believe constitutes a qualifying violation of a rule regarding, or significant threat to workplace health or safety.”
  • An explanation in Rule 5.2.3 that, while Colorado’s new law permits workers to insist on using their own more protective PPE, such PPE must itself be sourced “from a reliable provider” if the company has provided PPE compliant with federal, state and local recommendations that was sourced from a reliable provider.
  • Perhaps most controversially, an explanation in Rule 5.2.4 that whistleblower cases under this new law will entail a lower burden of proof for an employee who seeks to prove they were constructively discharged than most other whistleblower laws require. The worker will be able to prove a constructive discharge if he proves he blew the proverbial whistle in compliance with the new rules, including Rule 4.1.4 (above), the company failed to remedy the concern “immediately,” continuing to work would have posed a “substantial threat to health or safety for any person,” and he quit as a result thereof. In its prefatory Statement explaining the rule, the CDLE confirms this means that a plaintiff will not be required to prove the employer took an adverse employment action against the plaintiff; in other words, it will not be required to prove discharge, demotion, cut in pay, hours, etc.

Employers in Colorado should take time to familiarize themselves with these new rules.

Colorado Court of Appeals holds, and new COMPS Order 37 confirms, that Colorado state wage laws, like federal wage laws, exempt interstate drivers even if the driver himself does not cross state lines

The Colorado Court of Appeals held that the “interstate driver” exemption in the Colorado state wage laws (including the COMPS Orders), like federal wage law (including FLSA), exempts drivers who transport goods moved in interstate commerce, even if the driver himself only drives the final leg of transport within the state, without himself crossing state lines, especially where the driver is covered by DOT driver regulations.   The case brings Colorado in line with other courts to address the issue.

Source: Gomez v. JP Trucking, Inc., case no. 17CA2384, 2020 COA 153 (Colo.App. 11/5/2020).

Updated: Shortly after the Court issued its decision, the Colorado Department of Labor and Employment (CDLE) issued COMPS Order 37, in which it appears to have reversed its prior position in COMPS Order 36, which was rejected by the Court in Gomez, and now agrees with the ruling in Gomez; however, the CDLE included in its new COMPS Order 37, rules 2.4.6 and 2.2.6, where it mandates as a condition of such exemption, that such drivers also are paid at least 50 hours of pay at minimum wage, with overtime, which calculates in 2021 to be a minimum weekly payment of $677.60.

CDLE finalizes new rules regarding Colorado’s new paid leave laws

As noted in a prior blog post, the CDLE has finalized a crop of new rules on a variety of topics. This post addresses its Wage Protection Rules, effective January 1, 2021.  The Wage Protection Rules focus on issues related to Colorado’s new paid leave law (HFWA, Health Families and Workplace Act). Highlights of the rules include the following:

  • Rule 2.7.4: How to count employees for the purpose of determining whether a small business is under the 16-employee threshold and may, therefore, qualify for delayed implementation of HFWA’s 48 hour/6 day leave requirements until January 1, 2022.
  • Prefatory Statement and Rule 3.5.4(A)-(B): The requirements for a company’s current paid leave policies to satisfy the HFWA requirement for 48 hours (6 days for salaried employees) of general sick leave, to include the following:
    • The policy must provide for at least HFWA’s required 48 hours (6 days).
    • The policy must allow its leave to be taken for all the same reasons as HFWA. Employers are reminded that HFWA permits leave to be taken for more than just the employee’s illness. As summarized by the CDLE in its INFO 6b, HFWA permits an employee to take this time for any of the following reasons:

(1) having a mental or physical illness, injury, or health condition that prevents them from working;

(2) needing to get preventive medical care, or to get a medical diagnosis, care, or treatment, of any mental or physical illness, injury, or health condition;

(3) needing to care for a family member who has a mental or physical illness, injury, or health condition, or who needs the sort of care listed in category (2);

(4) the employee or the employee’s family member having been a victim of domestic abuse, sexual assault, or criminal harassment, and needing leave for related medical attention, mental health care or other counseling, victim services (including legal services), or relocation; or

(5) due to a public health emergency, a public official having closed either (A) the employee’s place of business, or (B) the school or place of care of the employee’s child, requiring the employee needing to be absent from work to care for the child.

    • The policy cannot impose stricter conditions on an employee’s ability to accrue, use and be paid leave, nor can it require notice or documentation (see below) not permitted to be required by HFWA.
      • Employers are reminded that HFWA contains a strict formula for minimum accrual rates, though frontloading is also permitted.
      • Employers are also reminded that HFWA does not permit a delay on usage, such as many sick leave policies that commonly now say sick leave may not be used until after, say, the first 90 days of employment.
    • The policy must also confirm that its leave includes HFWA’s required leave and that, therefore, employees will not receive additional HFWA leave if they use the leave (such as PTO) for other reasons first, except the company will supplement their leave banks as needed to grant 80 hours of pandemic leave in the event of a public health emergency.
      • Employers should carefully consider how they word this disclaimer, so that they do not inadvertently interfere with, minimize, or chill an employee’s HFWA rights.
  • Prefatory statement and Rule 3.5.2: HFWA’s requirement that the employee be paid leave on the basis of “the same rate and with the same benefits, including health benefits,” as if he’d worked, includes all compensation missed while on leave, including base pay, overtime, bonuses, and holiday pay, and even premium pay and shift differentials.
  • Prefatory statement and Rule 3.5.3(C): Explanation that, where an employee is eligible for both HFWA’s 48 hours (6 days for salaried employees) of general sick leave and 80 hours  (10 days for salaried employees) of pandemic leave, the employee must be allowed to take the 80 hours of pandemic leave first before exhausting their other paid leave, such as the 48 hours of HFWA leave.
  • Rule 3.5.3(B): When an employee takes intermittent HFWA leave it is generally taken in 6-minute increments, unless the employer specifies a different increment in its policy, up to 1 hour.
  • Rules 3.5.4-3.5.5: The notice and documentation requirements for leave. Employers are reminded that the documentation requirements are not significant and leave generally cannot be denied for lack of documentation of the sort many employers are used to requiring for sick leave. The CDLE explains the ability for employers to require documents, as follows (emphasis added):

An employer may require “reasonable documentation” that leave is for a HFWA-qualifying purpose only if the leave requested or taken is for “four or more consecutive work days,” C.R.S. § 8-13.3-404(6), defined as four consecutive days on which the employee would have ordinarily worked absent the leave-qualifying condition, not four consecutive calendar days. An employer may not require an employee to provide documentation that leave is for a qualifying reason “related to [a] public health emergency” under C.R.S. § 8-13.3-405(3), (4).

(A) When documentation is required, an employer may request only “reasonable” documentation, which is defined as not more documentation than needed to show a HFWA-qualifying reason for leave, as described in subparts (B), (C), and (D) below, and an employer shall not require disclosure of “details” regarding the employee’s or family member’s “health information” or the “domestic violence, sexual assault, or stalking” that is the basis for HFWA leave (C.R.S. § 8-13.3-412(1)).

(B) To document leave for a health-related need under C.R.S. § 8-13.3-404(1)(a), (b):

(1) If the employee received any services (including remote services) from a health or social services provider for the HFWA-qualifying condition or need, a document from that provider, indicating a HFWA-qualifying purpose for the leave, will suffice.
(2) An employee who did not receive services from a provider for the HFWA qualifying leave, or who cannot obtain a document from their provider in reasonable time or without added expense, can provide their own writing indicating that they took leave for a HFWA-qualifying purpose.

(C) To document leave for a safety-related need covered by C.R.S. §§ 8-13.3-404(1)(c) (i.e., domestic abuse, sexual assault, or criminal harassment): A document under subpart (B)(1) (from a health provider or a non-health provider of legal services, shelter services, social work, or other similar services) or an employee writing under (B)(2) will suffice, as will a legal document indicating a safety need that was the reason for the leave (e.g., a restraining order, other court order, or police report).
(D) Submission of documentation to an employer may be provided (1) by any reasonable method, including but not limited to electronic transmission, (2) at any time until whichever is sooner of an employee’s return from leave (or termination of employment, if the employee does not return), (3) without a requirement of the employee’s signature, notarization, or any other particular document format.
(E) Confidentiality of leave-related information and documentation. Any information an employer possesses regarding the health of an employee or the employee’s family member, or regarding domestic abuse, sexual assault, or criminal harassment affecting an employee or employee’s family member, shall be treated as confidential and may not be disclosed to any other individual except the affected employee, unless the affected employee provides written permission prior to such disclosure. C.R.S. § 8-13.3-412(2)(c). If the information is in writing, it shall be maintained on a separate form and in a separate file from other personnel information, and shall be treated as a confidential medical record by the employer. C.R.S. § 8-13.3-412(2)(a)-(b).

(F) If an employer reasonably deems an employee’s documentation deficient, without imposing a requirement of providing more documentation than HFWA or applicable rules permit, prior to denying leave, the employer must: (1) notify the employee within seven days of either receiving the documentation or the employee’s return to work (or termination of employment, if the employee does not return), and (2) provide the employee the minimum of seven days to cure deficiency after the employee is notified that the employer deems the existing documentation inadequate.

  • Rule 3.5.7 explains an employer’s recordkeeping obligations, including an obligation to keep all records for 2 years.
  • Rule 3.5.7 confirms an employer’s obligation to tell an employee, upon request, how much leave they have accrued and how much they have used. Requests may not be made more often than monthly, except additional requests can be made if there is a possible need for HFWA leave. This information may be communicated to the employee, among other ways, by reflecting such amounts on a pay stub.
    • Employers are cautioned that HFWA and Rule 3.5.7 talk about an employer’s obligation to show accrued and used amounts as if different. It isn’t clear if simply showing the employee’s accrued and unused balance is sufficient. Example compare telling an employee (1) <<This year you accrued 48 hours, of which you have used 8 hours, leaving you 40 hours as of this paycheck>> versus (2) <<You have 40 hours, accrued and unused, as of this paycheck.>>
  • Rule 5.1.4 discusses the CDLE’s authority to issue remedies in the event an administrative claim is filed with it for a violation. These remedies include monetary relief, such as unpaid wages, penalties, and fines, back pay plus either reinstatement or front pay, plus such other amounts as the CDLE finds it is authorized to award.

Employers are reminded that HFWA’s current 80 hours of pandemic leave will expire at the end of 2020. In an informal phone call with the CDLE, this author was advised that the agency believes a declaration effective on or after January 1, 2021 will be required to trigger 80 hours of pandemic leave starting January 1, 2021, in other words, that the current declarations of public health emergencies do not suffice — especially since they predate HFWA’s enactment. In what this author would think is the likely event of future declaration(s) effective on or after January 1, 2021, the CDLE advised that it believes employees will receive a fresh 80 hours at that time; in other words, assume a hypothetical employee has used 71 hours of the current pandemic leave by December 31, 2020, leaving him only 9 hours for this year. A fresh declaration will top his pandemic leave back up to 80 (not 9, nor 9+80=89).

Employers in Colorado should take time to familiarize themselves with these new rules.

CDLE issues Equal Pay Transparency rules under Colorado’s Equal Pay for Equal Work Act

As noted in a prior blog post, the CDLE has finalized a crop of new rules on a variety of topics. This post addresses its Equal Pay Transparency Rules, effective January 1, 2021.  The Equal Pay Transparency Rules focus on issues related to Colorado’s new Equal Pay for Equal Work Act (CEPEWA), especially its requirements for postings related to job openings and promotional opportunities. Highlights of the rules include the following:

  • Job Postings: Rule 4.1 explains the obligation to include in “all job postings, including but not limited to promotions,” help-wanted ad’s and Internet job listings, whether for an hourly or salaried position, “a range of hourly or the salary compensation, and a general description of all of the benefits and other compensation to be offered to the hired applicant,” quoting CRS 8-5-201(2). The CDLE explains this requires including:
    • If “a range thereof” is posted, then it must be no broader than “the lowest to the highest pay the employer in good faith believes it might pay.” The CDLE confirms that an employer may “ultimately pay more or less,” so long as the posted ranges was at the time the employer’s good faith estimate (rule 4.1.2).
    • And, a “general description” of “any bonuses, commissions, or other forms of compensation.”
    • And, a “general description” of all benefits, except “minor perks.” The CDLE explains anything that is tax-reportable will not be considered a “minor perk.”
  • Promotional Opportunities: Rule 4.2 explains the obligation to make “reasonable efforts” to “announce, post or otherwise make known” all “promotional opportunities” to then-current current employees.
    • Content: The information that must be provided for promotional opportunities is the same as for job postings, plus job title and the “means by which employees may apply.”
      • Confidentiality: There is a limited exception for promotional opportunities where the employer can demonstrate a “compelling need to keep a particular opening confidential because the position is still held by an incumbent employee who, for reasons other than avoiding job posting requirements, the employer has not yet made aware they will be separated” (rule 4.2.5(A)). This exception seems oriented to a situation where a company has decided to begin a search to replace a high level employee, such as a C-level officer, who hasn’t yet been told they will be terminated. This exception does not excuse notice forever, it only delays the obligation to provide notice until “any employees are told” of the opportunity; at that point all employees must be told, at least who have the minimum qualifications to do the job or who do a “substantially similar” job. And, this exception is eventually extinguished in its entirety once “the need for confidentiality ends;” in other words, once the CEO is told or the rumor mill distributes the news informally, notice must be provided.
    • To Whom: That information must be provided to all employees. An employer may not limit disclosure to only qualified employees. However, an employer may, after individuals express interest, “screen or reject candidates based on (their) qualifications” (rule 4.2.4).
    • How: An employer satisfies this obligation to “announce, post or otherwise make known” if it discloses the required information in a way that employees can effectively access within the workplace, including on the company’s intranet or by posting a hard copy on a bulletin board, so long as employees are told where to find such information and, if not all employees have access to that location, it is made known to the remaining employees in some other way.
    • When: The deadline for an employer to provide this notice is “the same calendar day and prior to making a promotion decision,” quoting CRS 8-5-201.
    • “Promotional Opportunity”: What constitutes a “promotional opportunity”? This has been one of the chief areas of speculation as employers await CEPEWA’s effective date January 1, 2021. Rule 4.2.5 brings some clarity, though there will definitely be no shortage of litigation on the issue.
      • Rule 4.2.1 defines a “promotional opportunity” as any time “when an employer has or anticipates a vacancy in an existing or new position that could be considered a promotion for one or more employee(s) in terms of compensation, benefits, status, duties or access to further advancement.” Thus a promotion is in the eye of the employee(s), not the employer, and the employee’s reason may be nothing more than a perceived sense of enhanced “status.” A promotion can exist whether it involves a position that is “existing or new.”
        • However, note, the language in rule 4.2.1 includes as an apparent requirement that the opportunity involve a “vacancy.” The importance of that word is not clear. Is it intended to mean that an increase in grade does not constitute a “promotional opportunity”? For example, assume an employee is hired into the position, Technician, at entry level, grade I, then as her skills progress and/or as she acquires seniority, she gains higher pay as a Technician level II, is that a “promotional opportunity” because there was an increase in pay and title, or is it not because there was no “vacancy” involved?
      • Rule 4.2.5(B) discusses “automatic” promotions “after (a) trial period.” No notice is required when a worker’s promotion is due to completion of a “trial period” and where the employee is guaranteed at hire, in writing, that they will be so promoted “within one year” after being hired. That guaranty can be included in any writing, to include an offer letter, an employment agreement, or a policy. The only conditions that an employer can impose are the employee’s “own performance and/or employer needs.”
        • In its prefatory Statement explaining these rules, the CDLE confirmed this exception is very limited and does not include “in-line” or “elevator” promotions. As examples of “elevator” promotions it gives the examples of elevations “from junior to senior positions, or from training to full positions.”
        • Question: Again, consider the hypothetical increase in grade (above). As noted above, there is no vacancy involved in that hypothetical, so arguably under rule 4.2.1, it does not count as a “promotional opportunity,” but does rule 4.2.5 and the prefatory Statement explaining it suggest that, even despite the lack of a “vacancy,” such an enhancement is a “promotional opportunity” for which notice must be given? As noted the progression in grade does bring with it increased compensation and arguably an enhanced sense of “status.”
        • Likewise, consider the common hypothetical that law firms will face. Typically law school graduates are hired as “associate” attorneys. Eventually, as their careers progress, some become “shareholders,” aka “partners” (depending on the firm’s legal entity, corporation or partnership). Is that elevation from associate to shareholder, a “promotional opportunity”? If so, must all law firms disclose to all employees of the firm (shareholder, associate, staff) the compensation ranges for their shareholders?  Here too there is again generally no “vacancy” involved; most firms do not limit elevations to some discrete number of vacancies in their shareholder ranks; there is however an increase in compensation and status.
      • Rule 4.2.5(C) posits an exception for “temporary, acting, or interim hires.” No promotional-opportunity notice is required before hiring a temp, or filling a vacancy with an acting or interim worker. Again though, it is a limited exception available only for 6 months and only if the person is hired without expectation to become “permanent.” “If the hire may become permanent, the required promotion posting must be made in time for employees to apply for the permanent position.”
    • Job Openings and Promotional Opportunities, Extraterritoriality: Rule 4.3 has probably received the most attention from the media. In these final rules, the CDLE walked back its proposed language regarding extraterritoriality. Now, employers need not provide either the job opening or promotional opportunity notice for “(1) jobs to be performed entirely outside Colorado, or (2) postings entirely outside Colorado.” In its prefatory statement the CDLE explains that does not include — in other words, notice is required for — each of the following situations:
      • “remote jobs” that “could be performed in Colorado” (emphasis in original),
      • “and even for (situations involving) non-Coloradoans hired for remote work (who) may move to Colorado after being hired by Colorado employers,”
      • and any “Internet posting accessible in Colorado.”

Employers in Colorado should take time to familiarize themselves with these new rules.

CDLE finalizes crop of new rules

The Colorado Department of Labor and Employment (CDLE) has finalized a half dozen rules on a wide array of topics. Employers should take care to immediately familiarize themselves with these rules, as many take effect January 1, 2021. The rules can be found on the CDLE’s rulemaking page, where the CDLE summarizes its new rules with the following table that contains links to the actual rules themselves:

Adopted Rules Clean Version Redline Version Statement of Basis & Purpose

State Labor Relations Rules, 7 CCR 1103-12

PDF PDF PDF
Colorado Whistleblower, Anti-retaliation, Non-interference, and Notice-giving (Colorado WARNING) Rules, 7 CCR 1103-11 PDF PDF PDF
Direct Investigations Rules, 7 CCR 1103-8 PDF PDF PDF
Equal Pay Transparency Rules, 7 CCR 1103-13 PDF PDF PDF
Colorado Overtime and Minimum Pay Standards (COMPS) Order #37, 7 CCR 1103-1 PDF PDF PDF
Wage Protection Rules, 7 CCR 1103-7 PDF PDF PDF

Individuals interested in receiving updates from the CDLE directly when it engages in the rulemaking process, may subscribe with the CDLE here.

Look for follow-up posts on this blog highlighting some of the key developments in some of these rules.

Tenth Circuit holds no adverse employment action is required in a failure-to-accommodate case

The Americans with Disabilities Act recognizes several types of claims that a disabled worker might file against their employer. Typically statutory employment claims include a requirement that the plaintiff prove an adverse employment action, meaning that they suffered harm to their employment, such as being discharged, promoted or other material impact on the significant terms and conditions of employment. The adverse employment action element poses a threshold against de minimis claims.

The Tenth Circuit held that a disabled plaintiff who asserts their employer failed to provide a reasonable accommodation need not prove an adverse employment action. In the case before it, the jury found that, even if the employer may have failed to reasonably accommodate the plaintiff’s disability, it did not result in her discharge, demotion or other harm to the terms and conditions of her employment. Initially a panel of the Tenth Circuit affirmed, but, re-hearing the case en banc, the Tenth Circuit held, over a strong and sizable dissent, that no adverse employment action need be proven because a failure-to-accommodate is itself actionable.

Source: Exby-Stolley v. Weld County, No. 16-1412, — P.3d —, 2020 BL 417137 (10th Cir. 10/28/20)

EEOC publishes final rule regarding its own ability to issue guidances

The EEOC, like some other administrative agencies, has historically issued what it calls informal guidances as a way of articulating the agency’s position on issues of law without having to go through the formal notice-and-comment rulemaking procedures required of regulations. The legal consequence, and even informal persuasive value, of these guidances is often litigated. On October 9, 2019, President Trump issued Executive Order 13891  to end the practice, requiring agencies to go through the rulemaking process instead. In implementation of that Executive Order, the EEOC published its final regulations 85 Fed.Reg. 69167, to be codified at 29 CFR 1695.

The EEOC’s new rules will require that all such guidances contain the following disclaimer:

The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or Commission policies.’

Additionally guidances will be subject to advance review by the Commissioners.

The EEOC’s new rules recognize a a category of guidances with particular “significance,” specifically those that may have an annual effect of $100-million or more  or otherwise “aversely affect in a material way the U.S. economy, a sector of the U.S. economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.” These “significant guidance documents” will have to be issued in accordance with formal rulemaking requirements. It is not clear how the EEOC will interpret this new regulation since, by definition, everything the EEOC does is intended to have an “affect” that is “material” on “jobs.”

Source: EEOC final rules, “Procedural Regulations for Issuing Guidance,” 85 Fed.Reg. 69167.

Turn on your radios, for a look at the oral arguments this morning before the Supreme Court involving the ACA aka Obamacare

I’ll be on 850 KOA talking about this morning’s oral arguments in the Supreme Court case involving the Affordable Care Act (so-called Obamacare) probably around 7:45 AM MT. Tune in or stream.

How will Proposition 118’s new paid Family and Medical Leave compare with currently required federal and state paid leave?

As noted on this blog, Colorado voters approved Proposition 118, which will mandate the creation of a new state-administered insurance program to provide paid Family and Medical Leave.

As Colorado employers know, the current federal Family and Medical Leave Act (FMLA) does not require paid leave. However, federal law currently does require paid leave in some instances, most notably up to 80 hours of pandemic leave with the possibility of an additional 10 weeks for pandemic-related childcare/school closure. Colorado’s newly mandated paid leave law already requires similar pandemic leave, plus on January 1, 2021 at least 48 hours of general paid sick leave.

This new Proposition 118 leave will be in addition to these leaves. Proposition 118 leave is not limited to pandemic-related needs. While this new leave will run concurrently with any federal unpaid FMLA leave, a company may not require an employee to exhaust other paid leave prior to taking this leave, though workers and companies may “mutually agree” to make up any difference between lost pay and the benefits provided with such other leave, quoting CRS 8-13.3-410.

Explanatory material in the Colorado legislature’s 2020 Blue Book summarizing Proposition 118, illustrated this benefit formula with the following table (parentheticals added):

Proposition 118 SB 20-205 (the portion of Colorado’s newly mandated paid leave law that is not limited to pandemic-related needs) FMLA
Type of leave Family and medical Medical Family and medical
Length of leave/paid or unpaid 12 weeks (up to 16 for pregnancy or childbirth complications); paid Up to 6 days; paid 12 weeks; unpaid
Eligibility requirements After $2,500 in wages have been subject to premiums Employee earns 1 hour paid sick leave per 30 hours worked; up to 48 hours per year After employee has worked for 12 months
Job protection After working for employer for 180 days N/A Yes
Employer size All employers (with 10 or more employees) Employers with 16 or more employees as of Jan. 2021; all employers beginning Jan. 2022 All elementary and secondary schools; public agencies; private businesses with 50 or more employees
Reasons for leave Birth or adoption of child; caring for self or family member; family member going on active duty in the military; sexual assault/abuse, & stalking Care for employee’s health/safety; care for a person that the employee needs to provide health/safety-related care Birth or adoption of child; caring for family member; family member going on active duty in the military

Interested in more information about Proposition 118 and the other new federal and state paid leave laws?

  • How will all this play out?
  • What do we know?
  • What can we expect?
  • What should HR professionals do to prepare their organizations?

Join us for a complimentary, engaging and interactive webinar.

L2S Legal, LLC is recognized by SHRM to offer SHRM-CP or SHRM-SCP professional credits (PDCs). This program is valid for 1.0 PDCs.

When: Thursday, Nov 12, 2020 Noon 12:00 PM Mountain Time (US and Canada) 

Register in advance for this webinar: https://us02web.zoom.us/webinar/register/WN_vGmrkeFcQ6iaM26Hg3iMGQ 

After registering, you will receive a confirmation email containing Zoom’s information for joining the webinar.

Colorado voters approve Proposition 118 Paid Family and Medical Leave Insurance

Colorado voters approved Proposition 118, the Paid Family and Medical Leave Insurance Act, to be codified at CRS 8-13.3-401, et seq. The Act enhances already required paid leaves at the federal and state level by requiring the State of Colorado to create a new agency capable of administering a paid family and medical leave insurance-based program. The new agency will be called the DFMLI (Division of Family and Medical Leave Insurance).

Interested in more information about Proposition 118 and the other new federal and state paid leave laws?

  • How will all this play out?
  • What do we know?
  • What can we expect?
  • What should HR professionals do to prepare their organizations?

Join us for a complimentary, engaging and interactive webinar.

L2S Legal, LLC is recognized by SHRM to offer SHRM-CP or SHRM-SCP professional credits (PDCs). This program is valid for 1.0 PDCs.

When: Thursday, Nov 12, 2020 Noon 12:00 PM Mountain Time (US and Canada) 

Register in advance for this webinar: https://us02web.zoom.us/webinar/register/WN_vGmrkeFcQ6iaM26Hg3iMGQ 

After registering, you will receive a confirmation email containing Zoom’s information for joining the webinar.

When will Proposition 118 take effect?

Employers, employees and the State of Colorado have ample time to consider Proposition 118 and begin preparing. The first premiums will not be charged until January 1, 2023, and benefits will not be available until January 1, 2024.

What does Proposition 118 require?

Proposition 118 will require the State of Colorado to create the DFMLI, which will administer this new program. Premiums will be paid in part by employers and employees, although employers will be able, if they choose, to pay the employee-share. The insurance benefits to be paid to eligible workers will cover up to 12 weeks of family and medical leave, plus another 4 weeks in the event of pregnancy or childbirth complications. Such leave will be allowed on an intermittent basis. When “foreseeable,” at least 30-day notice will be required of the worker; when not, the worker will be required to provide as much notice as possible, CRS 8-13.3-405.

What employers will be exempt from Proposition 118?

Proposition 118 will apply to employers of 10 or more workers; in other words, employers of fewer than 10 employees will be exempt from paying premiums. Sole proprietors will have the opportunity to opt into the program if they choose for 50% of what their premium would otherwise be based on their income (see below).

Which employees will be eligible for Proposition 118?

Workers who have worked for their employer for at least 180 days, will be eligible to receive benefits after they have earned $2,500 in wages on which Proposition 118 taxes (premiums) were paid. It is not clear in Proposition 118’s language, but it appears that a worker need not work for a covered employer to claim these benefits; in other words, it appears that a worker who meets those wage-and-hour requirements may be able to claim these benefits even if their employer did not pay the company-side premiums (although employees of exempt small employers will be required to pay their own employee-side premiums).

CRS 8-13.3-403(7)’s definition of “employee” also includes those who provide “labor or services for the benefit of another, irrespective of whether the common law relationship of master and servant exists,” which arguably may include some traditional independent contractors.

What reasons will trigger paid leave under Proposition 118?

There will be five qualifying reasons for Proposition 118 leave:

  1. The worker’s own serious health condition
  2. A serious health condition of a family member
  3. Birth, adoption, or placement in foster care
  4. Certain military service
  5. “Safe leave,” which is a type of leave, defined in Proposition 118, related to absences for the worker’s or a family member’s experiences involving domestic violence, stalking or sexual assault

What will benefit levels be?

Benefits will be paid at 90% of the worker’s average weekly wage (AWW) to the extent the worker’s AWW is less than or equal to 50% of the Statewide AWW (SAWW), plus 50% to the extent the worker’s AWW exceeds 50% of the SAWW. In 2024, Proposition 118 anticipates the SAWW will be $1,340, at which time the maximum benefit will be $1,100 per week. In 2025, Proposition 118 estimates the SAWW will be $1,392, setting the maximum benefit of $1,253. Explanatory material in the Colorado legislature’s 2020 Blue Book summarizing Proposition 118, illustrated this benefit formula, as follows:

Weekly wage Weekly benefit Maximum annual benefit Percent of weekly wage
$500 $450 $5,400 90%
$1,000 $768 $9,216 77%
$1,500 $1,018 $12,216 68%
$2,000 $1,100 $13,200 55%
$3,000 $1,100 $13,200 37%

 

What will Proposition 118 cost and how much will employers and employees pay?

Proposition 118 is expected to cost a minimum of $575.4-million in the second half of the government’s 2022-23 budget year then $1.2-billion in its 2023-24 budget year. Of this, the State itself expects to spend $3.2-million in 2021-22 and $48.6-million in 2022-23. Employers will pay their share through premiums in the form of a payroll tax, but may split the premium 50/50 with their workers. Employers who choose will be able to absorb some or all of the employee share. The premium rate for the first two years, 2023 and 2024, will be 0.9% of the worker’s wages, of which half (i.e., 0.45%) will be paid by the company and the other half (i.e., the other 0.45%) will be paid by the employee, although a company will be able to choose to pay some or all of the worker’s share. In its third year, 2025, Proposition 118 will reset premium rates, so that the total aggregate amount of premiums paid into the program will equal 135% of 2024’s claims plus 100% of the DFMLI’s administrative costs. At that point, Proposition 118 sets a cap on the employee premium at 1.2% of the employee’s wages; Proposition 118 does not on an initial read appear to set a cap on the amount that will be imposed on employers once the premiums are reset starting in 2025.

During Proposition 118 leave, what happens with the worker’s health insurance?

During Proposition 118 leave, the worker’s health benefits will need to be continued though the worker will be required to pay their portion of such premiums, unless an employer chooses to absorb some or all of the employee’s share.

After Proposition 118 leave, will the worker be guaranteed a right to return to their position?

Proposition 118 provides that a worker who takes Proposition 118 leave will be entitled to return to their same position or a position with the same pay, benefits, seniority and status.

Additional expected requirements of Proposition 118

In addition, Proposition 118 prohibits retaliation and discrimination against workers who request or use Proposition 118 benefits.

While Proposition 118 contains some definitions and explanations of this new program, there is substantial work yet to be done to stand up this new program. Litigation is anticipated.

Tenth Circuit tightens up on Title VII claims

In a case titled Sanderson v. Wyoming Highway Patrol, the Tenth Circuit tightened up on a plaintiff’s ability to bring Title VII claims.

First, the Tenth Circuit affirmed summary judgment on the plaintiff’s retaliation claim because she had not alleged it in her EEOC Charge of Discrimination. In her EEOC Charge, she’d alleged retaliation after she was demoted, but when she sued, she added a claim for retaliation based on events before her demotion. Because her EEOC Charge did not allege the latter, the Tenth Circuit held she had failed to exhaust Title VII’s administrative requirements.

Second, the Tenth Circuit affirmed exclusion of her offered expert “who, based on her own experience (not experience specific to the employer), would have testified about gender stereotypes in law enforcement.” The Tenth Circuit agreed with the trial court that no expert testimony is appropriate on such a topic “because gender stereotypes are within the jur(y)’s common knowledge and experience.”

Third, the Tenth Circuit then ruled for the plaintiff, reversing summary judgment, holding a jury trial was warranted on her claim of a hostile work environment based on her sex. The Tenth Circuit held that persistent “rumors … that she engaged in sexual relationships with colleagues and supervisors,” allegations by coworkers that she’d engaged in “flirting with non-colleagues” while on duty, were sufficient to warrant trial, especially where she’d once been ordered “to answer her radio when she was ‘douching,'” which was of course a clearly derogatory (alleged) comment on the basis of her gender. In addition she’d offered circumstantial evidence suggesting her colleagues excluded her because of her gender, where for example one coworker had bought everyone a breakfast burrito but her.

Third Circuit rules at least part of an asset-purchase agreement must be disclosed to union if requested

The Third Circuit recently held in Crozer-Chester Medical Center v. NLRB that at least portions of an asset-purchase agreement must be disclosed to a union representing workers in the seller’s workforce upon request. The seller had announced its intent to be acquired through an asset purchase and, in doing so, advised that workers in the union’s bargaining unit would be offered employment by the buyer subject to the terms and conditions of a new collective bargaining agreement that the buyer intended to negotiate with their union. The union requested a complete unredacted copy of the asset-purchase agreement (APA). The seller objected that the request was overly broad. The NLRB ruled against the seller, finding that at least some parts were clearly relevant and that it was, therefore, incumbent on the seller to produce the entire agreement or negotiate with the union an agreement to produce only parts. The NLRB found that provisions involving “’employees,’ terms and conditions of employment, the name of the hospitals, the continuation or expansion of certain service lines, capital investments, standards of care, equipment and property,” because those terms, at least, were “relevant to the availability and location of unit work, the potential for layoffs and hiring, whether the pension plan would be fully funded, and whether non-unit employees were receiving pay or benefits the Union might want to negotiate.”

The company then argued that disclosure of the APA would violate its confidentiality provisions and the nondisclosure obligations it owed the buyer. The Third Circuit rejected this argument as well, holding that a seller cannot immunize itself against disclosure to a union by negotiating confidentiality with the buyer.

Colorado Court of Appeals rules for employer on vacation issue

In a previous post, it was noted that a case has been pending before the Colorado Court of Appeals involving an employer’s refusal to pay vacation at separation, despite the provisions of CRS 8-4-101 and a new regulation promulgated by the CDLE thereunder. The Court of Appeals has now ruled in the case, Blount v. Colorado Department of Labor and Employment, that the employer was within its rights to refuse to pay out the vacation because it had clearly stated in its vacation policy that “Unused Vacation Allowances are not paid to Team Member at any time, including upon termination of employment.” The unpublished decision was not selected for official publication. It is also noted, as explained in this blog’s previous post, that this ruling is in apparent conflict and arguably contrary to the CDLE’s recent regulations and that the issue is currently pending before the Colorado Supreme Court in a different lawsuit.

OFCCP clarifies and requests comments on Executive Order 13950 re EEO training by government contractors

On 9/22/2020 President Trump issued Executive Order 13950, which appears to prohibit government contractors who are subject to Executive Order 11246 (OFCCP jurisdiction) from undertaking EEO training that, merely reading the order on its face, might possibly even implicit bias trainings. In today’s Federal Register, 85 FR 67375, the OFCCP initiated rulemaking under the new Executive Order by soliciting “comments, information, and material” re such trainings.

In a widely reported and documented speech, U.S. Secretary of Labor Eugene Scalia confirmed that Executive Order 13950 does not prohibit common EEO trainings, even those that include training on implicit bias.

I should be clear about what the President’s new Order does not do. It does not prohibit workplace training about non-discrimination and equal opportunity—that training is important, the Labor Department encourages it, and in some instances we require it. Nor does the Order prohibit the diversity training offered by countless American employers; training that, like my remarks today, emphasizes the importance of recognizing the value and worth of people of all races and creeds. American employers should value diversity and take extra strides to assure opportunity for those who in the past have been denied it—although they must do so in a way that does not discriminate against others based on race, ethnicity, or other protected characteristics. Finally, the President’s Order does not prohibit trainings about pre-conceptions or biases that people may have—regardless of their race or sex—about people who are different, and which could cause slights or even discrimination that’s not intended. What the Order does prohibit, though, is instruction in which federal contractors tell workers that because of their particular race or sex, they are racist, morally culpable, or less worthy of being heard.

Rather, he announced, and the OFCCP’s regulatory publication today confirms, that Executive Order 13950 is getting at something it calls “race or sex scapegoating.” It is not clear what this term means since, as today’s regulatory publication confirms it has long already been prohibited as a subset (just one kind, or one example, of) what was already prohibited: “race or sex stereotyping.” The OFCCP explains this in today’s rulemaking publication, as follows:

As used in this request for information, “race or sex stereotyping” means “ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of his or her race or sex.” [4Race or sex scapegoating” means “assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex,” and includes claims “that, consciously or unconsciously, and by virtue of his or her race or sex, members of any race are inherently racist or are inherently inclined to oppress others, or that members of a sex are inherently sexist or inclined to oppress others.” 

In short, Executive Order 13950 apparently does not prohibit the common kinds of EEO training, including on implicit bias, that companies currently use to combat race and sex discrimination, including unlawful harassment. It does apparently prohibit training that accuses the members of a particular gender or race of being “inherently inclined to oppress others.”

DOL reaffirms its FFCRA leave regulations following New York court ruling

Following a New York federal court’s ruling that struck portions of the DOL’s recent regulations governing FFCRA leave, the DOL has issued further rulemaking with expanded explanations. The new rulemaking largely reaffirms the prior regulations, including the specific rules struck by the New York court, but modifies the DOL’s prior rules regarding the FFCRA’s exclusion for employees of a health care provider by limiting the exclusion to those employees who are physicians or other health care providers, or “other employees who are employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care,” apparently agreeing with the court in the New York case that janitors or cafeteria workers are not excludable, in other words, are entitled to FFCRA leave. The DOL’s new rulemaking will appear in the Federal Register 9/16/2020. The DOL summarizes its new rulemaking, as follows (quoting the DOL):

  1. The Department reaffirms that paid sick leave and expanded family and medical leave
    may be taken only if the employee has work from which to take leave and explains
    further why this requirement is appropriate. This temporary rule clarifies that this
    requirement applies to all qualifying reasons to take paid sick leave and expanded
    family and medical leave.
  2. The Department reaffirms that, where intermittent FFCRA leave is permitted by the
    Department’s regulations, an employee must obtain his or her employer’s approval to
    take paid sick leave or expanded family and medical leave intermittently under
    § 825.50 and explains further the basis for this requirement.
  3. The Department revises the definition of “health care provider” under § 825.30(c)(1)
    to mean employees who are health care providers under 29 CFR 825.102 and
    825.125, and other employees who are employed to provide diagnostic services,
    preventive services, treatment services, or other services that are integrated with and
    necessary to the provision of patient care.
  4. The Department revises § 826.100 to clarify that the information the employee must
    give the employer to support the need for his or her leave should be provided to the
    employer as soon as practicable.
  5. The Department revises § 826.90 to correct an inconsistency regarding when an
    employee may be required to give notice of expanded family and medical leave to his
    or her employer.

With regard to parents of students on hybrid schedules (studying partly in school and partly remotely), the DOL clarified that such parents do not need to obtain permission from the company to take leave on the days the students are working remotely. The DOL explained that such leave is not intermittent leave technically (which would require permission it says, see #2 above) but is simply a day of regular leave.

“Vertical” component of DOL Joint Employer rule struck

A New York court has struck the “vertical” component of the DOL’s recent Joint Employer rule, ruling it is invalid as “arbitrary and capricious.”

To be clear, the Department’s justifications for engaging in rulemaking are valid. Promoting uniformity and clarity given the (at least superficially) [parenthetical in original] widely divergent tests for joint employer liability in different circuits is a worthwhile objective. The Court is sympathetic to the Department’s concern that putative joint employers face uncertainty, and that this uncertainty is costly. This opinion does not imply that the Department cannot engage in rulemaking to try to harmonize joint employer standards.
But the Department must do better than this. Any future rulemaking must adhere to the text of the FLSA and Supreme Court precedent. If the Department departs from its prior interpretation, it must explain why. And it must make more than a perfunctory attempt to consider important costs, including costs to workers, and explain why the benefits of the new rule outweigh those costs. Because the Final Rule does none of these things, it is legally infirm.

An example of “vertical” joint employment is when a worker is an employee of one company — for example a staffing agency — that in turn is a contractor to another company. Vertical joint employment is distinguished from “horizontal” joint employment where the person is employed by one company to work for both it and, for example, its sister corporation. The court emphasized its ruling did not question the DOL’s final rule as far as it applied to horizontal employment.

Source: State of New York v. Scalia, case no. 1:20-cv-01689 (S.D.N.Y. Feb 26, 2020).

The EEOC has limited its own authority to file “pattern or practice” lawsuits

The EEOC has formally acknowledged its own limitations on its authority to bring a “pattern or practice” lawsuit against an employer. When the EEOC brings such a lawsuit, it is not acting in a representative capacity on behalf of any particular employees (as it does in a so-called sec. 706 claim, citing Title VII’s relevant section), rather it is suing (under sec. 707) as the government itself asserting the employer has a pattern-or-practice of discrimination, which according to the Supreme Court requires it, in short, to prove that the employer’s “standard operating procedure” is to discriminate, quoting Int’l Bhd. of Teamsters v. U.S., 431 U.S. 324 (1977). Previously the EEOC has argued that, when it sues under sec. 707 it does not have to comply with a number of pre-lawsuit requirements. In a recent opinion letter, the EEOC reversed course on that argument and acknowledged that, no, it must comply with those pre-lawsuit requirements.

This opens a number of possible defenses by employers faced with pattern-or-practice lawsuits, including arguments that the EEOC failed to satisfy pre-lawsuit requirements such as the following:

  • The requirement for an actual charge to have been filed first.
  • The requirement for an investigation of that charge.
  • The requirement for good faith conciliation efforts by the EEOC prior to filing its lawsuit.

This also permits employers to assert that

  • They acted in good faith, and/or
  • They modified or rescinded the pattern-or-practice.

Arguably the latter gives employers the ability now to moot any pattern-or-practice lawsuit by the EEOC by modifying or rescinding the practice, even after the EEOC has filed its lawsuit.

In its opinion letter, the EEOC also took the position that it can no longer use the pattern-or-practice process to challenge employer actions that are not themselves discriminatory. Specifically this seems to be a concession on its part that, contrary to its litigation efforts to-date, it does not actually have the authority to challenge mandatory pre-dispute arbitration agreements, even if they ultimately had the effect of limiting a worker’s ability to participate in governmental investigations.

Because the EEOC’s opinion letter was not issued through the formal rule-making process, future EEOC Commissioners could re-reverse course. However, this opinion letters is publicly available and at least establishes a dispute over the EEOC’s jurisdiction in pattern-or-practice cases, which, if re-reversed by an EEOC under the leadership of a Democratic President, could be seen by the courts as arguably at least in part political in nature and therefore deserving of Congressional clarification.

Apple must pay for mandatory post-shift searches, Ninth Circuit holds

The Ninth Circuit has held that time spent in a mandatory post-shift search constitutes “hours worked” that must be paid under the Fair Labor Standards Act. The case was filed against Apple, which argued the time should not be compensable, especially in a class (collective) action, because the employees only needed to go through the searches if they brought a bag to work and some employees did not and therefore never had to go through such searches. The Ninth Circuit rejected the argument holding, at best, it merely went to the question of which employees could recover how much money for such time and which couldn’t because they hadn’t experienced such losses. The issue did not, according to the Ninth Circuit, alter its ruling that such time is compensable when an employee must go through such searches. Not only did the Ninth Circuit reject Apple’s argument, the Court then entered summary judgment against Apple, meaning the case was, from the Ninth Circuit’s perspective, so clear that there was no need to waste further time by holding a trial. The decision follows Ninth Circuit precedent permitting similar class (collective) actions by employees of Nike and Converse.

Source: Frlekin v. Apple Inc., case no. 15-17382 (9th Cir. 9/2/2020).

Honored to be named in Best Lawyers again!

Honored to be named in Best Lawyers in America.

Ninth Circuit holds Amazon drivers are not required to arbitrate

Following on the Third Circuit‘s ruling that gig-economy drivers, like those for Uber and Lyft, are not required to arbitrate, the Ninth Circuit held that so-called final mile drivers for Amazon, who deliver products from Amazon warehouses to their final destination also fall into the interstate transportation exception and therefore are not required to arbitrate. Although such drivers may, themselves, drive only intrastate, they are, in doing so, the Ninth Circuit held, merely completing the final leg of interstate transportation, at least where the goods do not “come to rest” in the in-state warehouse where such drivers pick them up for final delivery.

Source: Rittman v. Amazon, Inc., — F.3d — (9th Cir. 8/19/2020).

CDLE issues revised INFO #6A

The CDLE has issued a revised INFO #6A, which is its summary explaining the aspects of Colorado’s new sick leave law taking effect 1/1/2021. The CDLE summarized its changes to INFO #6A, as follows:

(1) Pg. 1: In the list of 3 situations that qualify for leave, a non-substantive wording change to category #3 (leave to care for another person) aims to make clearer that it applies when the person being cared for meets the category #2 definition (being ordered/instructed to quarantine/isolate, due to a risk of COVID-19, by a government agent or health provider).

(2) Pg. 1, footnote 3: As to what is and is not a “bonus” excluded from the regular pay rate that applies to paid leave in 2020, footnote 3 has been added to cite, and explain the answer in, the federal rule that applies to 2020 leave.

(3) Pg. 2: An “Example” of the CBA exemption was deleted because stakeholders have expressed differing views of the exemption that warrant consideration before the Division decides whether to adopt any interpretation.

(4) Pg. 3: An elaboration to the paragraph on how “Policies by any name can comply” cites and explains the federal rule that applies to 2020 leave, which draws a key distinction between employer policies that existed prior to April 1, 2020, and those adopted after that date.

(5) Pg. 2-3: Non-substantive citation edits — without changing any wording, numerical citations were added to the federal rules on what documentation (29 C.F.R. 826.100) and notice (29 C.F.R. 826.90) employees can be asked to provide, and numbers were corrected in two HFWA citations (to the 8-13.3-416 provision against waiver of rights, and the 8-13.3-418 provision recognizing employer rights against employee misconduct).

Of these, item 2 may be of particular interest, in that the CDLE revised INFO 6A to provide that, while on paid leave, sick leave must include payment of any “non-discretionary pay based on pre-determined criteria or formulae (e.g., by production or accuracy), whether called a piece rate, bonus, incentive, or other name.” In other words, in contrast what had seemed clear language in the new statute and in conflict with its prior INFO #6A, the CDLE has — without undertaking rulemaking — decided to re-interpret these new laws as excluding from required sick leave only “discretionary” bonuses.

“Paid Sick Leave Gaps Draw States’ Attention as Virus Persists”

State and local governments in at least 12 states (Washington, Oregon, California, Nevada, Arizona, Colorado, Michigan, Pennsylvania, New York, New Jersey, District of Columbia, Massachusetts) have or are in the process of enacting new emergency sick leave laws, which either supplement coverage of existing federal coronavirus-related leave rights and/or implements all new general sickleave requirements, according to an interesting article by Bloomberg BNA, available here: ”Paid Sick Leave Gaps Draw States’ Attention as Virus Persists.”

Colorado employers are reminded of Colorado’s new sick leave law, which does both (as well as imposes additional obligations on employers here).

New York judge strikes three portions of DOL regulations re FFCRA leave

A New York federal trial court has struck three portions of the DOL regulations implementing the FFCRA’s emergency paid sick leave. The State of New York challenged and the trial court struck these three portions of the DOL regulations:

  1. A requirement that emergency paid sick leave is available only if the employer has work available;
  2. An exclusion for employees working for a health care provider (note: this portion of the order is particularly unclear as it may have only struck the DOL’s definition of a “health care provider” without providing an explanation of how that phrase should be interpreted);
  3. A requirement that intermittent emergency paid sick leave be made available only with the employer’s consent (again this portion of the order is also unclear, in that the court clearly struck the requirement for employer consent, but apparently did not require intermittent leave be provided if the employer does not have work to provide).

The ruling is far from clear. Its impact is even less clear. It is not clear if the ruling has any impact outside of New York. New York did not request and the judge did not issue a nationwide injunction; therefore, technically the ruling has no impact outside New York. Nor is it clear if the DOL will challenge the ruling, including by appeal. It is not clear if judges outside New York (or appellate judges if this ruling is appealed) will find the trial court’s order persuasive.

Employers are reminded that a growing number of state and local jurisdictions are adopting their own requirements along these lines. Colorado employers in particular are reminded they must comply not only with the federal FFCRA’s requirements along these lines but also the new state law requirements.

CDC shifts to symptoms-based not test-based recommendations for employers

The CDC has shifted from a test-based approach to now recommending employers follow a symptoms-based approach for its workers.

As a general rule, the CDC cautions employers not to require employees to take coronavirus tests and should not require employees to provide a doctor’s note to validate the need for sick leave or the ability to return to work.

Employers should not require a COVID-19 test result or a healthcare provider’s note for employees who are sick to validate their illness, qualify for sick leave, or to return to work.

– Under the American’s with Disabilities Act, employers are permitted to require a doctor’s note from your employees to verify that they are healthy and able to return to work. However, as a practical matter, be aware that healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely manner. Most people with COVID-19 have mild illness and can recover at home without medical care and can follow CDC recommendations to determine when to discontinue home isolation and return to work.

– The U.S. Equal Employment Opportunity Commission (EEOC) has established guidance regarding Pandemic Preparedness in the Workplace and the Americans with Disabilities Act. The guidance enables employers to take steps to protect workers consistent with CDC guidance, including requiring workers to stay home when necessary to address the direct threat of spreading COVID-19 to others.

Now, the CDC is now recommending a symptoms-based approach for determining when employees should self-isolate from the workplace. Specifically the CDC now recommends:

  • Following their first positive test, with no symptoms, isolation for 10 days
  • Following their first positive test with mild to moderate symptoms, isolation for the longer of 10 days or 24 hours after last fever or other symptom
  • Following their first positive test with severe symptoms, isolation for 20 days, or longer depending on healthcare provider input
  • Following an exposure with either no testing or a negative test, and with no symptoms, isolation for 14 days

The CDC recommends testing only in rare situations, and then two tests at least 24 hours apart.

The CDC cautions that test results may not be as reliable as one might hope. It now believes that a negative test result may be false, and a person may continue to test positive long after no longer being contagious. Therefore, the CDC currently believes that an employee who is able to return to work according to the foregoing criteria does not restart their isolation clock, as it were, simply because they test positive again later — again assuming they otherwise meet the foregoing criteria, including having had no symptoms, etc., for the required period from their first test.

The CDC has issued less restrictive requirements available for workers engaged in an essential industry, permitting such workers an exemption to return to work after exposure if they have no symptoms, wear a face covering, monitor symptoms and socially distance. The CDC has also issued different criteria for healthcare workers. Likewise, the CDC’s new guidelines acknowledge that different criteria may be imposed by a healthcare provider, and different guidelines may be appropriate for individuals with preexisting conditions.

Bill Berger, Labor Lawyer on PAC-12 Players’ Boycott | KOA NewsRadio 850 AM & 94.1 FM | Logan & Lewis

Great time this morning on KOA NewsRadio with Dave Logan, Rick Lewis and Kathy Lee talking about the legal issues re #pac12 #pac12fb and the players demands for social justice and coronavirus reforms.

Source: Bill Berger, Labor Lawyer on PAC-12 Players’ Boycott | KOA NewsRadio 850 AM & 94.1 FM | Logan & Lewis
— Read on koanewsradio.iheart.com/featured/logan-lewis/content/2020-08-04-bill-berger-labor-lawyer-on-pac-12-players-boycott/

“Colorado employers continue to lose vast majority of cases to compel workers back on the job,” reports Denver Business Journal

As noted in prior blog posts, Colorado employers have been, and now continue to be, held liable for unemployment benefits in bulk of unemployment claims, despite calls to return to work.

“It has held remarkably steady between 16% and 18%,” Fitzgerald said of the total number of decisions that have gone for employers over the three-plus months the department has heard such disputes. “There’s a number of folks who are just not safe to return to a job regardless of the actions their employers take.”
— Read on www.bizjournals.com/

Governor Polis signs Colorado sick leave laws into effect, requiring IMMEDIATE action by employers

Governor Polis has signed two laws into effect.

The Colorado Department of Labor and Employment (CDLE) has issued summaries of each law (which it calls INFOs).

Additionally, the CDLE has released a poster (Spanish) for immediate posting by covered employers (see below).

Immediate Posting and Notification Obligations

Covered employers are required to immediately:

  • Post the required poster (Spanish).
    • Postings must be made in English and any language that at least 5% of the workforce speaks.
  • Notify employees of their rights under PHEW and HFWA. This notice may be accomplished by distributing in writing or by e-mail the required poster (Spanish).
    • If a company wishes, it may also meet this requirement by distributing copies of INFO 5, 6A and 6B, instead of (or in addition to) the poster.
  • Comply with the other requirements of PHEW and HFWA that took immediate effect (see below).

PHEW – Whistleblower and other protections

As explained in the CDLE’s INFO 5, PHEW applies to Colorado employers irrespective of size and also covers companies (called “principals” in the new law) who contract with five or more independent contractors in a year; it protects their employees and contractors

PHEW provides whistleblower protections for employees who lodge complaints regarding a public health emergency, i.e., who raise “a reasonable concern about workplace violations of government health or safety rules, or about an otherwise significant workplace threat to health or safety, related to a public health emergency.” Additionally it protects those who oppose such unsafe practices or participate in their investigation, determination or remedying. In INFO 5, the CDLE includes these observations regarding this aspect of PHEW:

Reasonableness​: Workers are protected even if they are incorrect about a claimed violation, if their belief was “reasonable” and in “good faith.” Workers are​ not protected for communications (A) that are “knowingly false,” or are made “​with reckless disregard for the truth or falsity of the information,” or (B) that “​share individual health information that is otherwise prohibited from disclosure” by state or federal law. (C.R.S. 8-14.4-102(5)-(6).)

Principal is not required to ​agree ​with, or ​act on, incorrect concerns​: If a worker’s concern is reasonable but incorrect, the principal is not required to agree with it, or to take any action the worker requests. It just cannot fire or otherwise act against the worker for raising that concern (for example, with a demotion, discipline, a cut in pay or hours, or an undesired transfer or shift change).

PHEW requires companies to allow individuals to wear their own desired pandemic-related safety gear, so long as it is more (not less) protective than that required by law and by the company.

A principal must allow, and cannot act against a worker for, “voluntarily wearing at the worker’s workplace the worker’s own personal protective equipment, such as a mask, faceguard, or gloves” (“PPE”) — with these limits and conditions on the PPE that the worker has a right to wear (C.R.S. 8-14.4-102(3)):

  • only PPE that “provides ​a higher level of protection than the equipment provided by the principal”;
  • only PPE that “is recommended by a federal, state, or local public health agency with jurisdiction over the worker’s workplace”; and
  • only PPE that “does not render the worker incapable of performing the worker’s job or prevent a worker from fulfilling the duties of the worker’s position.”

PHEW prohibits non-disclosure agreements that would otherwise impair an employee’s rights under PHEW. 

HFWA – Sick leave and other requirements

As explained in the CDLE’s INFO 5 and 6, HFWA takes effect in three stages.

Stage 1: HFWA’s immediate requirements

Effective immediately, all employers, irrespective of size, must

  • Offer leave that mirrors the federal FFCRA (Cares Act) leave currently required for coronavirus purposes.
    • While this new state law mirrors the requirements of the federal FFCRA, it expands the FFCRA in at least one major respect. This new Colorado law now requires such leave for employers of all sizes; whereas, the FFCRA does not apply to companies with more than 500 workers and has possible exemptions for employers with fewer than 15 workers.
    • Additionally HFWA offers no tax credits for the payment of this new leave. Whereas the FFCRA allows for the costs of such leave to be passed through effectively to the federal government in the form of tax credits, this means large employers who are not subject to the FFCRA apparently will have to absorb the costs of this new leave.  
    • The process for requesting and granting HFWA leave tracks the FFCRA’s in many respects, including the types of documentation involved.
      • However, the HFWA explicitly states that an employee’s failure to provide documentation or advance notice is generally not grounds for denying the leave.  “Documentation is not required to take paid sick leave, but can be required as soon as the employee reasonably can provide it” (quoting the CDLE’s INFO 6A).

Notice can be oral, and must provide only enough information for an employer to determine whether the leave is for an HWFA purpose. An employer may not require notice to include information or documentation beyond what is allowed in the documentation above. An employee’s representative (​e.g., spouse, adult family member, or other responsible party) may provide the notice if the employee cannot do so personally. If an employee fails to give notice, the employer must notify the employee of the failure and provide an opportunity to provide notice before denying the requested leave.

    • Existing leave policies can comply if they otherwise meet or exceed the HFWA’s requirements.
  • Post the required poster (Spanish).
  • Notify workers of their HFWA rights (see above regarding doing so by distribution of the poster and/or INFO 5, 6A and 6B).

Workers have complaint and anti-retaliation protections; however, the anti-retaliation provisions do not protect employee abuse of the HFWA as explained by the CDLE in INFO 6B:

HFWA disallows acting against employees for ​incorrect complaints or information, as long as the employee’s belief was reasonable and in good faith. (C.R.S. 8-13.3-407(3).) Employers ​can impose consequences (firing or otherwise) for misusing paid leave, dishonesty, or other leave-related misconduct. (C.R.S. 8-13.3-408.)

  • Example: ​An employer denies an employee paid leave for a “life coach” appointment. The employee files a complaint at the Division, and tells coworkers the employer is wrongly denying paid leave. The Division rules that this appointment was ​not HFWA-covered. That means the employer did nothing wrong by denying leave. But without evidence the employee’s belief that HFWA covered the appointment was unreasonable or in bad faith, the employer ​can’t ​ take action against the employee for requesting leave, filing a complaint, or telling co-workers she believed the employer violated HFWA.
  • Example:​ An ​employer​ grants​ an ​employee ​request ​for​ paid​ leave​ for a ​blood ​test ​and​ physical​ exam.​ The employer then learns the employee went bowling and never really had that appointment, so it (A) denies the request for paid leave and (B) fires the employee for dishonest misuse of leave. The employee files a complaint claiming (A) denial of paid leave and (B) retaliation against using HFWA rights. The employer did nothing wrong: (A) leave was not for an HFWA purpose, and (B) the firing was not retaliation because by taking leave with no HFWA purpose, the employee did not act reasonably or in good faith.

Stage 2: HFWA’s 1/1/2021 requirements

Effective 1/1/2021, for companies with more than 15 employees:

  • The HFWA’s (and FFCRA’s) pandemic sick leave requirements will have ended. Instead, an employer will be required to offer at least 48 hours (for hourly and 6 days for salaried workers) of sick leave for employees when
  1. having a mental or physical ​illness, injury, or health condition that prevents them from working;
  2. needing to get ​preventive medical care​, or to get a ​medical ​diagnosis, care, or treatment​, of any mental or physical illness, injury, or health condition;
  3. needing to ​care for a family member ​who has a mental or physical illness, injury, or health condition, or who needs the sort of care listed in category (2);
  4. the employee or the employee’s family member having been a victim of ​domestic abuse, sexual assault, or criminal harassment​, and needing leave for related medical attention, mental health care or other counseling, victim services (including legal services), or relocation; or
  5. due to a ​public health emergency​, a public official having ​closed ​either (A) the employee’s ​place of business​, or (B) the ​school or place of care ​of the employee’s child, requiring the employee needing to be absent from work to care for the child.
  • That leave will have to accrue at least at the rate of 1 hour per every 30 hours worked. Leave may be front loaded.
  • That leave may be capped at 48 hours per year.
  • That leave must be allowed to roll-over year-to-year (though again subject to a cap if the employer so elects).
  • That leave must be allowed for hourly and salaried employees, whether full-time or part-time, with accruals starting on the date of hire.
  • Note: Existing leave policies can comply if they otherwise meet or exceed the HFWA’s requirements.
    • With regard to PTO policies in particular, the 48 hour/6 day requirement is met so long as the full compliment of PTO exceeds such amounts. ‘Compliance can be through a broader paid leave policy, such as allowing “paid time off” for any purpose, health-related or not — as long as the policies (A) provide as much time off as HFWA requires, (B) for all conditions and situations that HFWA covers.”‘
    • Still relying on existing policies may be difficult for many companies as current sick leave policies often (a) provide for leave only when employees are sick (not for the other reasons set forth above), (b) provide only 5 not 6 sick days, (c) apply to employees after a 90-day probationary period and (d) do not cover part-time employees. These are just some examples of the kinds of current sick leave policies that will need to be revised to come up to HFWA’s requirements.
      • Additionally, policies should be revised to impose the permitted 48 hour/6 day cap; otherwise, as required, the sick leave will carry over and continue to accrue year after year.
  • Provide for at least 80 hours of sick leave in the event of another public health emergency. This leave will not be required in addition to the 48 hours/6 days required above; rather, leave requirements may be supplemented to cover the 80-hours of pandemic leave in the event of another public health emergency.
  • And as with the initial pandemic-leave requirements (see above), the HFWA explicitly states that an employee’s failure to provide documentation or advance notice is generally not grounds for denying the leave.
    • Additionally documentation may only be required when the absence is of 4 or more days, per CRS 8-13.3-404(6).

Stage 3: HFWA’s 1/1/2022 requirements

Effective 1/1/2022, the HFWA’s requirements will attach to employers of 15 or fewer.

HFWA and part-time employees

As noted, HFWA leave is required for part-time employees.

In footnote 2 of INFO 6A, the CDLE explains that Stage 1 HFWA leave (FFCRA-type pandemic leave) is to be provided to part-time employees, as follows:

​Leave for a part-time employee with a regular schedule is at the number of hours normally worked in a two-week period. If an employee’s hours vary, the employer must use their average hours over the six months before the leave. If the varied-schedule part-timer was employed less than six months, the employer must use the number of hours the employee agreed to work when hired, or if no such agreement exists, the average daily hours the employee was scheduled to work over their entire employment. (These are methods the U.S. Department of Labor adopted, 29 C.F.R. 826.21(b), so employers can use them for federal and Colorado law.)

And footnote 5 of INFO 6B explains the same for the availability of Stages 2 and 3 HFWA leave (general sick leave) for part-time employees, as follows:

​Leave for a part-time employee with a regular schedule is at the number of hours normally worked in a two-week period. If an employee’s hours vary, employers must use the employee’s average hours over the six months before leave started. If the varied-schedule part-timer has been employed less than six months, the employer must use the number of hours the employee agreed when hired, or if there is no such agreement, the average daily hours the employee was scheduled to work over their entire employment. Any of these calculations include hours the employee took leave, in addition to hours worked. (These are the methods the U.S. Department of Labor adopted, so employers can use the same method for federal and Colorado law.)

HFWA and CBAs

As explained in the CDLE’s INFO 6B, the HFWA allows for collectively bargained leave instead so long as it is “equivalent or more” than the HFWA requires:

Example: ​ A CBA can depart from the HFWA requirement that leave must be in hourly increments, but cannot eliminate HFWA rights to take leave without interference (or, relatedly, to file a complaint if HFWA is violated). 

HFWA and business closures

When Stage 2/3 HFWA leave kicks in, it will not be required for periods when an “entire business” is “completely closed.”

No paid leave required if an entire business is completely closed​. ​Unless a workplace is closed due to a temporary government quarantine/isolation order, no paid leave applies ​if an entire business is completely closed ​(whether temporarily or permanently) – because then, workers aren’t on “leave,” they’re on furlough or layoff (which makes unemployment insurance, not paid leave, the possible remedy).

Defining a public health emergency

Both PHEW and HFWA discuss the phrase “public health emergency” as periods recognized as such by ‘either (A) “a public health order issued by a state or local public health agency” or (B) “a disaster emergency declared by the governor based on a public health concern”’ (quoting the CDLE’s INFO 5). The CDLE notes in footnote 3 of INFO 6B that, starting at least 1/1/2021, a public health emergency need not be related to coronavirus.

Counting years

In footnote 4 of its INFO 6B, the CDLE states that, unless an employer specifies otherwise, years will be counted, at least for HFWA purposes, on the basis of a calendar year. 

If an employer doesn’t say otherwise, the “year” when paid leave accumulates is a ​calendar​ year, because HFWA’s broad leave requirements all start with calendar years: January 1, 2021, for most employers; January 1, 2022, for small employers. But an employer ​can ​ choose a different annual cycle if (A) it tells employees in writing in advance, and (B) switching to a different cycle doesn’t diminish employee HFWA rights. 

Successor liability

The HFWA imposes successor liability on a buyer who “acquires all of an organization, a trade, or a business or substantially all of the assets of one or more employers,” quoting CRS 8-13.3-402(12). See also CRS 8-13.3-403(8).

Supreme Court reinforces anti-discrimination law’s ministerial exemption

In a 7-2 decision, the Supreme Court upheld religious elementary schools’ ability to otherwise-discriminate against teachers under the “ministerial” exemption. Title VII, the ADEA and other anti-discrimination laws recognize a ministerial exemption, consistent with the First Amendment, that permits a synagogue, for example, to require that its rabbi actually be Jewish and that she adhere faithfully to the synagogue’s interpretation of Judaism.

In this case two teachers sued for wrongful discharge. One alleged age discrimination, the other alleged disability discrimination. The schools responded that it need not prove the real reason for their discharges because neither were protected under either the age or disability discrimination laws, because both fell under the ministerial exemption. Neither teacher was a “minister” in the sense of being ordained, having the title of a minister, or having any religious education or formal training. However, both taught courses that included religion. Both had been instructed when hired and again during their employment that their individual faith and morals were essential components of their jobs performance. Both prayed with their students as part of their jobs. The majority of the Court held all of that was sufficient for both to fall within the ministerial exemption.

There is abundant record evidence that they both performed vital religious duties. Educating and forming students in the Catholic faith lay at the core of the mission of the schools where they taught, and their employment agreements and faculty handbooks specified in no uncertain terms that they were expected to help the schools carry out this mission and that their work would be evaluated to ensure that they were fulfilling that responsibility. As elementary school teachers responsible for providing instruction in all subjects, including religion, they were the members of the school staff who were entrusted most directly with the responsibility of educating their students in the faith. And not only were they obligated to provide instruction about the Catholic faith, but they were also expected to guide their students, by word and deed, toward the goal of living their lives in accordance with the faith. They prayed with their students, attended Mass with the students, and prepared the children for their participation in other religious activities. …. Their titles did not include the term “minister,” and they had less formal religious training, but their core responsibilities as teachers of religion were essentially the same. And both their schools expressly saw them as playing a vital part in carrying out the mission of the church, and the schools’ definition and explanation of their roles is important. In a country with the religious diversity of the United States, judges cannot be expected to have a complete understanding and appreciation of the role played by every person who performs a particular role in every religious tradition. A religious institution’s explanation of the role of such employees in the life of the religion in question is important.

Source: Our Lady of Guadalupe School v. Morrissey-Berru, case no. 19-267 (7/8/2020).

Supreme Court expands religious exemption from Obamacare contraceptive requirements to private employers

When passed, so-called “Obamacare” contained exemptions from its contraceptive-coverage requirements for religious organizations and other non-profits that hold sincerely held religious objections. Following a series of regulatory developments and judicial decisions, eventually, by 2018, the Trump Administration expanded the exemptions to include private employers, including even publicly traded companies, and secular universities, even with regard to their student health care coverage.

In a fractured decision, the Supreme Court upheld the Trump Administration’s 2018 rule, at least for now. It is not clear from their fractured opinions whether the opinion resulted in a flat-out win or simply a remand. At least 2 of the Justices (Breyer and Kagan) whose votes are included in the 7-vote majority, wrote a concurrence outlining why they believe the Trump Administration may ultimately lose the case on remand. Commentators have already begun noting their belief that the case will not be successful on remand and is likely to return on appeal to the Supreme Court.

Source: Little Sisters of the Poor v. Penn., case no. 19-431 (7/8/2020).

EEOC expands mediation and conciliation opportunities

The EEOC has increased the mediation and conciliation opportunities available to employers as part of its charge-handling procedures.

Mediation is the process employers are most familiar with. Some, but not all, charges are automatically eligible for mediation when a charge is filed with the EEOC. Employers will have noticed receiving a written offer to mediate (instead of investigating) with most charges. Although the EEOC hasn’t yet disclosed details, the EEOC has announced it will increase the types of charges automatically eligible for mediation. Employers are reminded that, when they receive notice of a charge without an offer to mediate, it is often an indication that the EEOC believes the charge raises possibly very severe allegations. Employers are always free to request mediation of such charges too, though the EEOC reserves the right to decline to undertake mediation in lieu of investigation.

Conciliation is less common. The EEOC is generally required to undertake conciliation before, itself, filing suit against employers in court. As part of its new initiative, and again without yet disclosing details, the EEOC has announced it will expand its conciliation efforts, including by requiring management within the EEOC to review settlement demands before they are even communicated to employers.

Employers facing charges of discrimination, or even possible litigation by the EEOC, should consider the availability of mediation and conciliation, especially under these expanded opportunities.

EEOC confirms coronavirus antibody testing not permitted as part of return-to-workplace program, although active-virus testing may be permitted

The EEOC updated its FAQ guidance with Q&A no. A7, advising that an employer may not require coronavirus antibody testing (which is the blood test done to see if the person’s blood suggests they were previously exposed to the virus sufficient to create antibodies) as part of a company’s return-to-workplace program. However the EEOC advised (1) this may change as the science develops and (2) an employer may be able to require active virus testing (which is commonly done with a nasal swab) if such testing is uniformly required and “job-related consistent with business necessity.”

A.7.  CDC said in its Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace.” In light of this CDC guidance, under the ADA may an employer require antibody testing before permitting employees to re-enter the workplace? (6/17/20)

No. An antibody test constitutes a medical examination under the ADA. In light of CDC’s Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace,” an antibody test at this time does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA.  Please note that an antibody test is different from a test to determine if someone has an active case of COVID-19 (i.e., a viral test).  The EEOC has already stated that COVID-19 viral tests are permissible under the ADA.

The EEOC will continue to closely monitor CDC’s recommendations, and could update this discussion in response to changes in CDC’s recommendations.

OSHA issues updated FAQ confirming cloth face coverings and general masks worn re coronavirus are not PPE

OSHA issued an updated FAQ re cloth face coverings and the kind of masks commonly worn regarding coronavirus (called “surgical” masks by OSHA, as distinguished from what it calls “respirators (e.g., filtering face pieces)”).

OSHA explains that cloth face coverings are worn, not to protect the wearer, but to reduce the expression of virus by the wearer, what OSHA calls “source control.”

Face coverings are intended to prevent wearers who have Coronavirus Disease 2019 (COVID-19) without knowing it (i.e., those who are asymptomatic or pre-symptomatic) from spreading potentially infectious respiratory droplets to others. This is known as source control.

As such, OSHA says, cloth face coverings are not PPE and need not be provided by or paid for by an employer. Likewise surgical masks and even respirators, when worn for source control, are not PPE and need not be provided by or paid for by an employer.

Cloth face coverings are not considered personal protective equipment (PPE) and are not intended to be used when workers need PPE for protection against exposure to occupational hazards. As such, OSHA’s PPE standards do not require employers to provide them.

Although not required by OSHA, “OSHA generally recommends that employers encourage workers to wear face coverings at work.” In addition, even when cloth face coverings are encouraged, OSHA also recommends that employers encourage social distancing in the workplace. (Note: Employers should remember OSHA is only one source of applicable law. Employers need to comply with all applicable laws, some of which, especially at the state and local level, do mandate social distancing, de-densifying, and even cloth face coverings.)

OSHA’s FAQ reminds employers that some companies must provide masks and even respirators as PPE, for example healthcare employers whose workers are known to be exposed to coronavirus. Likewise OSHA reminds all employers they face a General Duty citation if they fail to take feasible and effective means to eliminate a recognized hazard in the workplace; OSHA’s FAQ suggests it may rely upon evidence to include the failure of an employer to encourage the use of cloth face coverings or surgical masks and the practice of social distancing.

UPDATE: November 18, 2020, OSHA issued a statement confirming again that cloth face coverings are not PPE within the meaning of OSHA requirements (though employers may require them in their workplaces).

Arbitration agreement held enforceable despite impossibility of complying with governing-rules language

The Colorado Court of Appeals recently held that an arbitration agreement is enforceable even if complying with its governing-rules language is impossible. In the case, the parties entered into an arbitration agreement calling for any dispute to be governed by the rules of a particular arbitration company. One of those rules was that only that arbitration company could be the arbitrator applying its rules; in other words, one rule was that other arbitrators could not apply its rules. The problem was that the arbitration company did not do the kind of arbitrations that the parties intended. When a dispute later arose, they still did not. Therefore, it was impossible for the plaintiff to bring her case before that company, and, she contended and the trial court agreed, it would have been a violation of its rules — the rules agreed to by the parties — if a different arbitrator were to apply those rules. The Colorado Court of Appeals disagreed, holding that the parties had agreed to arbitrate, so arbitrate they must, though whoever they pick to be the arbitrator should still apply the other company’s rules for arbitration (despite the fact those rules prohibit other companies from apply those rules). The Court cautioned its conclusion might have been different if the parties had expressly stated that the prior company was their exclusive selection for an arbitrator.

Source: Johnson-Linzy v. Conifer Care Communities, 2020 COA 88 (6/4/2020).

SCOTUS holds LGBTQ status is protected within Title VII’s meaning of “sex”

The Supreme Court held that LGBTQ status is already protected within Title VII’s meaning of the word “sex.”

Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.

In authoring the majority opinion, Justice Gorsuch observed that the word “sex” would likely not have been read that way by the drafters of Title VII in 1964, but the majority held that the term is unambiguous as drafted; according to well-established precedent, resort to legislative history is not permitted when a statutory text is unambiguous.

Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.

The majority confirmed that, while Title VII’s “sex” protections directly protect such traits/classes, plaintiffs may also assert sex-stereotyping claims related to such traits/classes, just as plaintiffs can assert sex-stereotyping claims based on male-female cys-gendered status.

To be sure, there may be cases in which a gay, lesbian, or transgender individual can make a claim like the one in Price Waterhouse. That is, there may be cases where traits or behaviors that some people associate with gays, lesbians, or transgender individuals are tolerated or valued in persons of one biological sex but not the other. But that is a different matter.

OSHA believes some employers have a duty to investigate work-relatedness of coronavirus cases

If an employee tests positive, does an employer have an obligation to investigate whether it is “work-related”? OSHA thinks so, now, but investigating and determining “work-relatedness” may not be as easy — or as lawful — as OSHA believes.

OSHA issued a revised enforcement guidance that now imposes on some employers a duty to investigate the possible “work-relatedness” of employee coronavirus cases and, if confirmed, to comply with OSHA’s recordkeeping requirements regarding work-related injuries and illnesses.

Employers may wish to review this summary of the revised guidance by SHRM.

To determine the work-relatedness of an employee’s having coronavirus, the employer should conduct an investigation, which may be as simple as talking to the individual. OSHA suggests that an employer’s investigation should include:

(1) (asking) the employee how he believes he contracted the COVID-19 illness;

(2) while respecting employee privacy, discuss(ing) with the employee his work and out-of-work activities that may have led to the COVID-19 illness; and

(3) review(ing) the employee’s work environment for potential SARS-CoV-2 exposure.

Unfortunately this may not be as simple as OSHA makes it sound. Employers are reminded of the EEOC and other legal constraints on medical inquiries. Employers should consult with legal counsel as they attempt to thread the needle between the conflicting requirements of OSHA and the EEOC.

OSHA believes a case of coronavirus may be considered work-related if “(f)or instance:

COVID-19 illnesses are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation.

An employee’s COVID-19 illness is likely work-related if it is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.

An employee’s COVID-19 illness is likely work-related if his job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.

An employee’s COVID-19 illness is likely not work-related if she is the only worker to contract COVID-19 in her vicinity and her job duties do not include having frequent contact with the general public, regardless of the rate of community spread.

An employee’s COVID-19 illness is likely not work-related if he, outside the workplace, closely and frequently associates with someone (e.g., a family member, significant other, or close friend) who (1) has COVID-19; (2) is not a coworker, and (3) exposes the employee during the period in which the individual is likely infectious.

CSHOs should give due weight to any evidence of causation, pertaining to the employee illness, at issue provided by medical providers, public health authorities, or the employee herself.

OSHA’s recordkeeping requirements may not apply to employers with fewer than 10 workers or with workplaces recognized by OSHA as low hazard.

PPPFA grants greater flexibility for PPP loan borrowers

Congress passed and President Trump signed the PPPFA (Paycheck Protection Program Flexibility Act), which grants greater flexibility for PPP loan borrowers.

Among its changes, the PPPFA

  • Reduces the required ratio of loan usage on payroll from 75% to 60%
  • Permits loan funds to be used over a 24- not 8-week covered period
  • Extends the deadline to rehire workers from June 30 to December 31, 2020
  • Adds exceptions to the headcount requirement for rehiring
  • Extends the repayment term from 2 to 5 years

Many of the PPPFA’s changes are options available but not necessarily mandated for existing PPP loans. Companies that have taken out a PPP loan should contact their lender and tax/accounting professionals to learn which of the PPPFA’s options may now be available to them.

Coronavirus-safety lawsuits against employers begin

Employees have begun filing lawsuits against their employers alleging inadequate safety measures in place to protect against coronavirus.

So far, two lawsuits have reached an initial-decision stage:

  1. Rural Community Workers Alliance v. Smithfield Foods, Inc., case no. 5:20-CV-06063-DGK. See Order Granting Defendant’s Motion to Dismiss dated 5-5-2020.
  2. Massey v. McDonald’s, case no. 2020CH04247. See initial complaint, which news reports advise was sustained against a motion to dismiss, by way of a verbal order from the bench that has not (yet?) been reduced to writing and that, instead, set the matter for a forthwith hearing regarding a possible preliminary injunction.

The McDonald’s complaint alleges that the company has taken inadequate safety precautions to protect against coronavirus and asserts claims that, as a result, its restaurant operations at the locations identified in the complaint constitute “public nuisances” that endanger the public, including not only customers but the plaintiff (and requested class-action members) employees and, further constitute the tort of negligence against the plaintiffs (and requested class-action members) who are employees. The complaint further includes a negligence claim against individual store owners.

While the McDonald’s complaint has reportedly been set for a preliminary injunction hearing, the plaintiffs may take little comfort from the Smithfield Foods case, which was also set for such a hearing, but then dismissed.

Employers can expect to see more of such lawsuits filed as the country struggles through the coronavirus crisis, but it seems the court in the Smithfield Foods case reached the right conclusion. Coronavirus is a national crisis. It is not a risk specific to any given workplace. COVID-19 is a novel virus. Not just companies, and individuals, but the government itself is struggling to determine what proper safety measures are in the workplace.

Most importantly in these cases, workplace safety is within the exclusive jurisdiction of OSHA. Congress created extensive regulatory procedures and protections within the OSHA administrative framework. One such right is not a private right of action by workers who wish to challenge workplace safety measures. Employees must pursue their concerns through the OSHA process, not by filing private lawsuits in court.

To the extent plaintiffs try to cloak their negligence claims as “public nuisance” claims, the same reasoning applies, as the court noted in the Smithfield Farms case.

The parties agree that the Plant cannot be a public nuisance simply by virtue of the fact that it is a meat-processing plant during a global pandemic. Moreover, in this case, Smithfield has implemented substantial health and safety measures to protect Plant workers, and no employees of the Plant have been diagnosed with COVID-19. While Plaintiffs argue that Smithfield could do more to protect its workers, that is not the issue before this Court. The issue is whether the Plant, as it is currently operating, constitutes an offense against the public order. Because of the significant measures Smithfield has implemented to combat the disease and the lack of COVID-19 at the facility, the Plant cannot be said to violate the public’s right to health and safety.

The court there concluded its analysis by emphasizing that it was sympathetic to the plaintiffs’ concerns, but that those concerns should be raised to the appropriate workplace safety agencies, primarily OSHA.

Plaintiffs are naturally concerned for their health and the health of their community in these unprecedented times. The Court takes their concern seriously. Nevertheless, the Court cannot ignore the USDA’s and OSHA’s authority over compliance with the Joint Guidance or the significant steps Smithfield has taken to reduce the risk of a COVID-19 outbreak at the Plant.

Colorado unemployment agency continues trend of ruling in favor of workers who decline to return to work

A previous post addressed the requirement that workers return to work — or face loss of unemployment — when an offer to return (to comparable work) is extended, unless the worker is a “vulnerable individual” or otherwise unable to return due to coronavirus-related reasons. As noted there, the initial report was that the state was tending to find in favor of employees by a large margin. The Denver Business Journal is reporting today that the state unemployment agency is continuing that trend, now finding 84% of the time in favor of workers.

Colorado Department of Labor and Employment officials have received about 1,100 submissions from employers about workers who have refused to come back to work in recent weeks and want to keep receiving jobless benefits. And of the 869 cases that CDLE officials have adjudicated, only 16% have ended in workers being told to return to their positions or give up their unemployment payments, chief communications officer Cher Haavind said.

In the vast majority of cases, workers claiming they can’t safely return to work fall into one of two categories delineated by federal and state law as allowing them to refuse to go back to an environment where they would interact with many co-workers or customers, Haavind said. One is that they are part of a vulnerable population that would make them more susceptible to catching coronavirus — people over age 65 or who have underlying medical conditions such as heart troubles or being immunocompromised. The second is that they are caring either for someone who is at increased risk of contracting the virus or are caring for a child out of school.

Supreme Court reaffirms importance of “but-for” analysis in certain kinds of discrimination claims against private employers

An on-going issue in litigation is frequently the standard of causation and whether a plaintiff’s allegations and evidence are established to meet it. One of the more strict standards is the “but-for” test, meaning a plaintiff must show that the adverse employment action (such as termination or refusal to hire) would not have occurred “but for” their membership in a protected class. One of the least strict standards requires the plaintiff to prove only that their membership in a protected class was “a motivating factor” in the decision.

Two recent Supreme Court decisions reinforced the role of “but-for” analysis in at least certain kinds of cases.

First in  Babb v. Wilkie, the Supreme Court held that governmental employers do not enjoy the protection of “but for” analysis in age discrimination claims, even though private employers have and continue to be able to assert the need for “but for” proof in age discrimination cases.

We are not persuaded by the argument that it is anomalous to hold the Federal Government to a stricter standard than private employers or state and local governments. That is what the statutory language dictates, and if Congress had wanted to impose the same standard on all employers, it could have easily done so. 

Second in Comcast Corp. v. National Association of African American-Owned Mediaa unanimous Supreme Court held that a plaintiff asserting a sec. 1981 claim against a non-governmental defendant must meet the stricter “but-for” test, rather than the less strict “motivating factor” test.

Readers are reminded that the “motivating factor” test is the applicable test in some types of claims. As the Supreme Court explained in Comcast, the issue depends upon the specific statute, its language and its legislative history, as well as the extent of relief sought on the claim asserted.

DOL expands availability of overtime exemption for commissioned-employees working for a “retail or service establishment”

The nation’s leading wage-hour law (FLSA, the Fair Labor Standards Act) has long recognized an exemption from overtime for employees who work on a commission. However, the exemption is only available if the employee is working for a “retail or service establishment.”

To be a “retail or service establishment” the company “(a) (m)ust engage in the making of sales of goods or services; and (b) 75 percent of its sales of goods or services, or of both, must be recognized as retail in the particular industry; and (c) not over 25 percent of its sales of goods or services, or of both, may be sales for resale. ” 29 CFR 779.313. The DOL says that this means the business must have a “retail concept.” 29 CFR 779.316.

Typically a retail or service establishment is one which sells goods or services to the general public. It serves the everyday needs of the community in which it is located. The retail or service establishment performs a function in the business organization of the Nation which is at the very end of the stream of distribution, disposing in small quantities of the products and skills of such organization and does not take part in the manufacturing process. (See, however, the discussion of section 13(a)(4) in §§ 779.346 to 779.350.) Such an establishment sells to the general public its food and drink. It sells to such public its clothing and its furniture, its automobiles, its radios and refrigerators, its coal and its lumber, and other goods, and performs incidental services on such goods when necessary. It provides the general public its repair services and other services for the comfort and convenience of such public in the course of its daily living. Illustrative of such establishments are: Grocery stores, hardware stores, clothing stores, coal dealers, furniture stores, restaurants, hotels, watch repair establishments, barber shops, and other such local establishments.

Quoting: 29 CFR 779.318

In addition to the definition of a “retail or service establishment,” the DOL had published a list of business that “may be recognized as retail” and another list that “may not be.” 29 CFR 779.317 and .320. The lists have been roundly criticized over the years. They were not internally consistent, they did not reflect changing realities of the business world, and they were formulated without first going through the formal regulatory process.

The DOL has withdrawn its lists. While the definition of “retail or service establishment” itself has not been affected, the withdrawal of the arbitrary unrealistic add-on lists is intended to make the commission exemption available to more businesses.

Employers who think they fit within the definition of “retail or service establishment” may now wish to consult with legal counsel about using the commissioned-employee overtime exemption, even if they previously were not on the “may be” list or even were previously on the “may not be” list.

Employers are reminded to confirm compliance with state and local law. For example in Colorado COMPS Order 36 has its own commissioned-employee exemption requirements (rule 2.4.2).

Source: DOL final rule, “Partial Lists of Establishments that Lack or May Have a ‘Retail Concept’ Under the Fair Labor Standards Act,” 85 Fed. Reg. 97 (May 19, 2020).

Considering a voluntary internal audit to prepare for Colorado’s new equal pay law?

Last year I co-authored an article for the Colorado Lawyer about Colorado’s new equal pay law (the Colorado Equal Pay for Equal Work Act, “CEPEWA”), with two of CEPEWA’s drafters, Sarah Parady and Charlotte Sweeney. CEPEWA will take effect January 1, 2021. In our article, we noted that CEPEWA “CEPEWA does not grandfather current pay disparities” and further that “proof of intent to discriminate is not an element of a CEPEWA violation.” We recommended employers consider performing a voluntary internal audit to identify and eliminate any inadvertent pay disparities. Indeed CEPEWA recognizes a possible reduction of exposure if internal audits are done.

A new article was just published in the Colorado Lawyer discussing what such an audit might look like.

Source: Mind the Gap: Practical Solutions to Minimize Pay Equity Claims, by Christine Lyman, Lonnie Giamela, and LaLonnie Gray, The Colorado Lawyer, vol. 49 no. 5 (May 2020)

NLRB amends and republishes its final rule “to protect employee free choice”

As previously posted on this blog, the NLRB issued a final rule “to protect employee free choice” altering its approach to blocking charges, voluntary recognition and construction industry (section 9(a)) voluntary recognition. The Board has amended and republished its final rule. The Board explained its final rule, including the amendments, as follows:

  • Blocking Charge Policy: The amendment replaces the current blocking charge policy with either a vote-and-count or a vote-and-impound procedure. Elections would no longer be blocked by pending unfair labor practice charges, but the ballots would be either counted or impounded—depending on the nature of the charges—until the charges are resolved. Regardless of the nature of the charge, the certification of results (including, where appropriate, a certification of representative) shall not issue until there is a final disposition of the charge and its effect, if any, on the election petition.
  • Voluntary Recognition Bar: The amendment returns to the rule of Dana Corp., 351 NLRB 434 (2007). For voluntary recognition under Section 9(a) of the Act to bar a subsequent representation petition—and for a post-recognition collective-bargaining agreement to have contract-bar effect—unit employees must receive notice that voluntary recognition has been granted and are given a 45-day open period within which to file an election petition. The amendment applies to a voluntary recognition on or after the effective date of the rule.
  • Section 9(a) Recognition in the Construction Industry: The amendment states that in the construction industry, where bargaining relationships established under Section 8(f) cannot bar petitions for a Board election, proof of a Section 9(a) relationship will require positive evidence of majority employee support and cannot be based on contract language alone, overruling Staunton Fuel, 335 NLRB 717 (2001). The amendment applies to an employer’s voluntary recognition extended on or after the effective date of the rule, and to any collective-bargaining agreement entered into on or after the effective date of voluntary recognition extended on or after the effective date of the rule.

NLRB delays effective date for revised representation procedures

As previously posted on this blog, the NLRB has reversed course on its Obama-era expedited election procedures. Originally scheduled to take effect April 16, 2020, the NLRB announced its final rule will now take effect May 31, 2020.

EEOC updates Q&A, specifically re employees with an underlying disability that puts them at “higher risk” re coronavirus

The EEOC updated its prior Q&A re coronavirus, adding three questions (numbered G3-G5) to address the needs of employees who already suffer from an underlying disability that, now, puts them at “higher risk” related to coronavirus.

First in questions G3-G4, the EEOC advises that an employer is obligated to consider whether a reasonable accommodation exists to permit such an individual to return to work once a request is made. Until a request is made, the employer has no obligation to consider the possibility of a reasonable accommodation. The EEOC explains too that the request need not be made formally — it may be made “in conversation or in writing” — and it need not be made by the employee themselves — it may be made by the employee “or a third party, such as an employee’s doctor.” Indeed the request need not even be a request, it is enough if the employee “let(s) the employer know that she needs a change for a reason related to” an underlying disability.

Question G4 confirms that an employer need not consider a reasonable accommodation even when the company knows the worker has an underlying disability that might put them at a “higher risk” related to coronavirus, until such a request is made. However where the employer is itself concerned that the employee’s disability might put them at a “higher risk” related to coronavirus, the employer cannot on its own initiative “exclude” the worker from work unless it can prove a “direct threat” to the worker’s own health (or the health of others) and, further, that the “direct threat” cannot be removed by reasonable accommodation, such as allowing “telework, leave, or reassignment” if reasonable. The EEOC discusses the possibility of showing such a “direct threat,” noting it “is a high standard,” with proof that “if, after going through all these steps (of considering the relevant risk, the possibility of reasonable accommodation, etc.), the facts support the conclusion that the employee poses a significant risk of substantial harm to himself that cannot be reduced or eliminated by reasonable accommodation.”

Question G5 discusses possible accommodations that should be considered by an employer and worker in trying to determine if a reasonable accommodation might exist to permit a worker with an underlying disability to work despite a “higher risk” related to coronavirus (emphasis added).

Accommodations may include additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees returning to its workplace.  Accommodations also may include additional or enhanced protective measures, for example, erecting a barrier that provides separation between an employee with a disability and coworkers/the public or increasing the space between an employee with a disability and others.  Another possible reasonable accommodation may be elimination or substitution of particular “marginal” functions (less critical or incidental job duties as distinguished from the “essential” functions of a particular position).  In addition, accommodations may include temporary modification of work schedules (if that decreases contact with coworkers and/or the public when on duty or commuting) or moving the location of where one performs work (for example, moving a person to the end of a production line rather than in the middle of it if that provides more social distancing).

These are only a few ideas.  Identifying an effective accommodation depends, among other things, on an employee’s job duties and the design of the workspace.  An employer and employee should discuss possible ideas; the Job Accommodation Network (www.askjan.org) also may be able to assist in helping identify possible accommodations.  As with all discussions of reasonable accommodation during this pandemic, employers and employees are encouraged to be creative and flexible.

Colorado unemployment disputes skyrocket as employers begin to offer returns to work that employees decline, with CDLE at least initially tending to rule for workers

As previously posted on this blog, the Colorado Department of Labor and Employment Unemployment created a new portal for employers to use to report when an employee refuses after being offered to return to work; the refusal will generally render the individual ineligible for further unemployment, unless the individual can prove they are “vulnerable” and that the company has inadequate coronavirus protections in place.

The Denver Business Journal is reporting that approximately 150 workers have already advised the Colorado Department of Labor and Employment that they do not wish to return to work and would rather stay on unemployment due to concerns about coronavirus, while 200 employers have used the new portal to report refusals.

How is the CDLE handling these disputes? The Denver Business Journal advises the agency is attempting to investigate each claim individually, without agency representatives actually going to jobsites though.

Instead, workers will be asked to explain what underlying condition they have that makes it unsafe for them to return to work or why they feel the workplace is an unsafe environment, and employers will be asked if the worker is coming back at the same job and pay rate and if efforts have been made at increased sanitation and social distancing.

Who’s winning these disputes? For now the Denver Business Journal reports the CDLE is ruling generally in favor of the workers.

So far, CDLE officials, who have gone through about 55 claims, are coming down on the sides of the workers at a ratio of about 10-to-1, said Jeff Fitzgerald, unemployment insurance division director.

The CDLE does not explain in the article how it plans to address this issue going-forward especially if, as reported in the Denver Post, the combination of traditional unemployment benefits plus pandemic unemployment benefits is high enough that a “majority” of workers in Colorado are actually earning more money on unemployment currently than they would in their job if returned.

The cutoff point is around $30 an hour in Colorado, according to the study by Gregory Miller, a CFA and graduate researcher at CSU. Make more than that and the financial incentive is to return to work. Make less than that, and collecting unemployment pays better, especially if a job doesn’t come with health insurance and other benefits.

The combination of that “financial incentive” plus health concerns about the possible coronavirus-related implications of returning to work around others, even subject to Colorado’s social distancing guidelines, means the CDLE is going to be required to address many, many more such disputes going-forward.

Looking for a short primer on which expenses are forgivable and how to maximize the forgiveness of a PPP loan?

Here’s a handy short primer on PPP loans, discussing which expenses are forgivable and steps employers can take to maximize the forgiveness of a PPP loan.

Which Paycheck Protection Program Expenses Are Eligible for Forgiveness?
— Read on www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/Paycheck-Protection-Program-Expense-Forgiveness.aspx

Trying to prepare your EEO-1 data filing in the midst of coronavirus pandemic? FYI, the EEOC just delayed EEO-1 data collection for 2020 due to coronavirus

The EEOC has delayed EEO-1 data collection for 2020 until 2021 due to coronavirus. In its press release, the EEOC explained the delay, as follows:

The EEOC recognizes the impact that the current public health emergency is having on workplaces across America and the challenges that both employers and employees alike are now facing. Filers of the EEO-1, EEO-3and EEO-5, which include private sector employers, local referral unions, and public elementary and secondary school districts, are dealing with unique and urgent issues. Delaying the collections until 2021 will ensure that EEO filers are better positioned to provide accurate, valid and reliable data in a timely manner.

EEO-1, EEO-3 and EEO-5 filers should begin preparing to submit data in 2021. Pending approval from the Office of Management and Budget under the Paperwork Reduction Act (PRA) the EEOC would expect to begin collecting the 2019 and 2020 EEO-1 Component 1 in March 2021 and will notify filers of the precise date the surveys will open as soon as it is available. The EEOC would expect to begin collecting the 2020 EEO-3 and the 2020 EEO-5 in January 2021 and will notify filers of the precise date the surveys will open as soon as it is available.

In addition to updates to the agency website, the EEOC will be reaching out directly to EEO-1, 3, and 5 filers regarding the delayed opening of the surveys.

The EEOC will formally publish its announcement in the Federal Register, to appear, starting 5/8/2020, here.

DOL issues new model COBRA notices to address growing wave of litigation

The DOL has issued a new set of model COBRA notices that may be used to comply with COBRA’s requirements, along with a set of explanatory Q&A’s. The DOL’s model COBRA forms are not required to be used, they are intended to reduce litigation exposure by helping to “to ensure that qualified beneficiaries better understand the interactions between Medicare and COBRA.”

Employers should immediately contact their health insurance and benefits providers and plan administrators to ensure they are using the correct COBRA documentation.

California sues Uber and Lyft alleging driver misclassification

In furtherance of California’s AB 5, the State of California has sued Uber and Lyft, seeking to re-characterize their drivers as employees, not independent contractors. The State summarized its case in the introductory paragraphs of its Complaint, as follows:

5. Uber and Lyft are transportation companies in the business of selling rides to customers, and their drivers are the employees who provide the rides they sell.  The fact that Uber and Lyft communicate with their drivers by using an app does not suddenly strip drivers of their fundamental rights as employees.

6. But rather than own up to their legal responsibilities, Uber and Lyft have worked relentlessly to find a work-around.  They lobbied for an exemption to A.B. 5, but the Legislature declined.  They utilize driver contracts with mandatory arbitration and class action waiver provisions to stymie private enforcement of drivers’ rights.  And now, even amid a once-in-a century pandemic, they have gone to extraordinary lengths to convince the public that their unlawful misclassification scheme is in the public interest.  Both companies have launched an aggressive public relations campaign in the hopes of enshrining their ability to mistreat their workers, all while peddling the lie that driver flexibility and worker protections are somehow legally incompatible.

7. Uber’s and Lyft’s motivation for breaking the law is simple: by misclassifying their drivers, Uber and Lyft do not “bear any of [the] costs or responsibilities” of complying with the law.  (Dynamex, supra, 4 Cal.5th at p. 913.)  When addressing investors, Uber pulls no punches:  “Our business would be adversely affected if Drivers were classified as employees instead of independent contractors.”  (Uber Securities and Exchange Com. (“SEC”) S-1, p. 28 [Filing Date: April 11, 2019].)

8. As one federal district judge recently observed: “[R]ather than comply with a clear legal obligation, companies like Lyft are thumbing their noses at the California Legislature . . . .”  (Rogers v. Lyft (N.D. Cal. Apr. 7, 2020, No. 20-CV-01938-VC) ___ F.Supp.3d ___ [2020 WL 16484151, at *2].) 9. The State’s laws against employee misclassification protect all Californians.  They protect workers by ensuring they receive the compensation and benefits they have earned through the dignity of their labor.  (Dynamex, supra, 4 Cal.5th at p. 952.)   They protect “law-abiding” businesses from “unfair competition,” and prevent the “race to the bottom” that occurs when businesses adopt “substandard wages” and “unhealthy [working] conditions,” threatening jobs and worker protections across entire industries.  (Id. at pp. 952, 960.)  They protect the tax-paying public, who is often called upon to “assume responsibility” for “the ill effects to workers and their families” of exploitative working arrangements.  (Id. at p. 952-53.)  They are a lifeline and bulwark for the People against the “erosion of the middle class and the rise in income inequality.”  (A.B. 5, § 1(c).) 10. The time has come for Uber’s and Lyft’s massive, unlawful employee misclassification schemes to end.  The People bring this action to ensure that Uber and Lyft ridehailing drivers—the lifeblood of these companies—receive the full compensation, protections, and benefits they are guaranteed under law, to restore a level playing field for competing businesses, and to preserve jobs and hard-won worker protections for all Californians.

The Complaint seeks to have Uber and Lyft’s drivers re-classified as employees, not independent contractors, the imposition of statutory penalties, and an open-ended to-be-proved basket of remedies involving “minimum wages, overtime wages, business expenses, meal and rest periods, wage statements, paid sick leave and health benefits, and social insurance programs.”

Although the drivers at-issue may have entered into arbitration agreements, it is anticipated the State’s lawsuit will not be subject to arbitration because, in this case, it is the State that has filed suit, and the State was not party to the driver arbitration agreements.