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DOL Rescinds Persuader Rule

On July 17, 2018, the Department of Labor (“DOL”) officially abandoned the “Persuader Rule” by filing a notice of rescission in the Federal Register. The rescission is expected to become effective on or about August 17, 2018 (i.e. 30 days after the rescission notice is published in the Federal Register). This rescission gives employers and certain legal service providers more certainty as to whether their business dealings are subject to the reporting requirements of the Labor Management Reporting and Disclosure Act (“LMRDA”).

Janus v. AFSCME – Mandatory Agency Fees Unconstitutional for Public Sector Unions

On June 27, 2018, the Supreme Court of the United States issued what may be one of its most impactful decisions of the 2017/2018 term in Janus v. American Federation of State County and Municipal Employees, Council 31, Case No. 16–1466.  In its opinion, found here, the Court held that laws requiring public sector workers who are not union members to pay union dues would be compelled speech in violation of the First Amendment. This decision reverses nearly forty years of federal precedent, and declares unconstitutional a host of state laws which allow such fee arrangements. It also has significant implications for the manner in which public sector unions collect their dues.

The Masterpiece Cakeshop Decision – Bakery Owner Wins, But on Narrow Grounds

On June 4, 2018, the Supreme Court of the United States issued its highly anticipated decision in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, Case No. 16-111. In its opinion, found here, the Court vacated an administrative order entered by the Colorado Civil Rights Commission (“CCRC” or the “Commission”) against the bakery, which had refused to sell custom wedding cakes to same-sex couples on the grounds that doing so would violate the owner’s sincerely held religious beliefs. The Court made it clear that judges and administrative officials violate a litigant’s constitutional rights if they engage in conduct that displays hostility toward a particular set of religious beliefs. But the majority opinion left many questions unanswered. It remains to be seen if a business owner may refuse to do business with a prospective customer because of the customer’s sexual orientation when the refusal is based on a sincerely held religious belief.

Employee Class Action Waivers Held Enforceable

On May 21st, the United States Supreme Court held that the National Labor Relations Act (“NLRA”) does not prohibit employers from requiring workers to agree, as a term and condition of their employment, that they waive the right to bring class or collective actions, and will individually arbitrate employment-related legal claims.  Epic Sys. Corp. v. Lewis, U.S., Case No. 16-285 (Slip Opinion, May 21, 2018). This decision resolves a high profile conflict, in which the National Labor Relations Board and some federal courts had found that the NLRA prohibits enforcement of arbitration agreements containing class action waivers. The Court’s decision makes clear that the NLRA does not prevent the enforcement of an arbitration agreement that is otherwise valid under the Federal Arbitration Act (“FAA”). 

NLRB Restored to Employer-Friendly Three Republican/ Two Democrat Composition

Relief for employers under the Trump Administration continues, following the U.S. Senate’s narrow confirmation of John Ring, former Morgan Lewis & Bockius LLP attorney, to the National Labor Relations Board on April 11, 2018.  The 50-48 Senate vote returned the five-member board to an employer-friendly composition of three Republicans and two Democrats and alleviates the log jam of the 2-2 split created when Board Member Phillip Miscimarra stepped down. On April 13, Ring became Chair of the Board, replacing Marvin Kaplan as Chair. Kaplan remains a member of the Board. 

New WHD Opinion Letters Provide Guidance to Employers

Last week, the U.S. Department of Labor’s Wage and Hour Division (WHD) issued three new opinion letters for the first time since 2010.  The Obama administration had ceased the practice of issuing opinion letters – which answer specific questions from employers or other parties – in favor of general administrative interpretations.  Last June, Secretary of Labor Alex Acosta announced that he was reinstating the practice of issuing opinion letters for the Trump administration.  This announcement was praised by businesses and employment lawyers because the opinion letters apply the law to a specific set of facts and represent official statements of agency policy.  In addition to the new letters, WHD republished 17 letters the Obama administration rescinded following their original publication late in the Bush administration.

Equal Pay Act: Ninth Circuit Says Prior Salary Not Job-Related

On April 9, the full Ninth Circuit held that employers may not rely on an employee’s prior salary as a “factor other than sex” in defending against a claim under the Equal Pay Act. Rizo v. Yovino, No. 16-15372 (9th Cir. April 9, 2018) (found here). In making this determination, the court phrased the question before it concisely, asking “can an employer justify a wage differential between male and female employees by relying on prior salary?” The answer: a resounding “no.” The court further stated that the “text, history and purpose of the Equal Pay Act” do not allow an employer to rely on an employee’s prior salary to justify a wage disparity. Id. 

DOL Announces “PAID” Program

On March 6, 2018, the Wage and Hour Division of the U.S. Department of Labor (DOL) announced that it will soon launch a nationwide pilot program for employers to self-report potential overtime and minimum wage violations. The pilot program is called the Payroll Audit Independent Determination (PAID) program. The primary objective of PAID, according to the agency, is to “improve employers’ compliance with overtime and minimum wage obligations, and to ensure that more employees receive the back wages they are owed—faster.” Many details are not yet available, but the DOL has announced the broad outlines of the program, which are available here:  https://www.dol.gov/whd/paid/#1

Large Arizona Jury Award Reversed Because of Timely Raised Procedural Defense

The Arizona Court of Appeals recently reversed a jury’s award of $375,000 in damages to a former police officer for the City of Surprise. In Peterson v. City of Surprise, No. 1 CA-CV 16-0415 (Feb. 6, 2018), the court held that the employee, who claimed she was constructively discharged in retaliation for reporting sexual harassment, was precluded from bringing the case in court because she had failed to file a charge of discrimination within 180 days after she left her employment. As the court stated, the employee specifically “crafted her claim against the City to allege not constructive discharge caused by ‘firsthand’ discrimination, but constructive discharge caused by illegal retaliation under the [Arizona Employment Protection Act].” A claim of illegal retaliation is one that contends that the employer’s actions were wrongful in response to a report of discrimination, not wrongful because of the discrimination itself. The court held that there was no difference between the claim of retaliation and the harassment claims for purposes of the filing deadline.

City of KCMO Adopts Ban The Box Ordinance for All “Employers”

On February 2, 2018, the City of Kansas City Missouri (“KCMO” or “the City”) adopted a “Ban The Box” ordinance that applies to private employers. The KCMO “Criminal Records in Employment” ordinance enacts a new section, Section 38-104. The ordinance becomes effective on June 9, 2018.  Before this ordinance, private employers located in KCMO were encouraged, but not required, to limit the extent to which they based employment-decisions on an applicant’s criminal history. The new Section 38-104 clearly and unambiguously places limitations on the extent to which all private employers located in KCMO can take an applicant or current employee’s criminal history into account when making employment decisions. (The City has applied a similar rule to its own employment procedures since 2013.). Employers with locations in KCMO should carefully review the ordinance and seek guidance from legal counsel in determining whether, how and when to make inquiries regarding criminal history.

The FLSA & Unpaid Internship Programs: DOL Adopts “Primary Beneficiary” Test

On January 5, 2018, the U.S. Department of Labor (“DOL”) clarified its position regarding paid and unpaid internships. They will now use the “primary beneficiary” test for determining “whether interns are employees” under the Fair Labor Standards Act (“FLSA”). The agency has issued a revised Fact Sheet called “Internship Programs under the Fair Labor Standards Act.”

NLRB Issues Two Landmark Decisions: Return to Original Joint-Employer Standard & New Handbook Policy Review Standard

On December 14, 2017, the National Labor Relations Board (the “Board”) issued two landmark decisions. Both are of note because they directly and substantively address two issues that have vexed employers for a number of years: (1) When can two separate and distinct corporate entities be treated as joint-employers for NLRA purposes? and (2) When is a work rule or handbook policy unlawfully overbroad under the NLRA?

DOL Proposes Rescission of Regulations that Restrict Tip Pooling

On December 5th, 2017, the U.S. Department of Labor, Wage and Hour Division will publish a Notice of Proposed Rulemaking (“NPRM”) and a request for comments on tipping regulations issued pursuant to the Fair Labor Standards Act (“FLSA”). The NPRM will propose that the tip pooling regulations issued by the DOL in 2011, which placed restrictions on employers’ ability to implement tip pooling arrangements, should be rescinded.

New Age Harassment: When Will the Next Shoe Drop? What to Do When You Learn One of YOUR Employees Might Be on the Naughty List.

Who will be next? After Matt Lauer, Garrison Keiller, and Russell Simmons each faced assertions of inappropriate conduct in the last week, the “who’s next” question predominates pop culture and the daily news cycle. In the wake of numerous sexual harassment accusations unfolding across Hollywood and corporate America, sexual harassment has become one of the hottest topics in today’s news. While claims of sexual harassment in the workplace are nothing new, the almost daily media coverage of so many high-profile claims will likely result in an increase in reports of sexual harassment allegations for many employers in the immediate future.

Deadline for OSHA Electronic Reporting Rule Delayed Until December 15, 2017

OSHA has delayed the December 1, 2017, deadline for the Electronic Reporting Rule until December 15, 2017.  This rule requires a wide range of establishments to electronically submit injury and illness information from their OSHA Forms 300A.  The deadline extension was announced via a November 24, 2017, OSHA notice in the Federal Register.

Deadline for OSHA Electronic Reporting Rule Fast Approaching

Employers have until December 1, 2017, to electronically submit injury and illness information from their 2016 Summary of Work-Related Injuries and Illnesses (Form 300A) under OSHA’s 2016 Improve Tracking of Workplace Injuries and Illnesses Rule (“Electronic Reporting Rule” or “the Rule”).

The Tivol Decision – Must An Employer Challenge The Issuance of an MCHR Right-To-Sue Letter By Filing A Writ of Mandamus?

The Missouri Supreme Court recently issued an opinion that clarifies when it is appropriate to challenge the issuance of a Missouri Commission on Human Rights (“MCHR”) right-to-sue letter.

Major Changes to Missouri Human Rights Act Signed Into Law by Governor Greitens

On Friday, June 30, 2017, Missouri Governor Eric Greitens signed Senate Bill 43 into law. The Bill implements significant changes to the Missouri Human Rights Act (“MHRA”) and will likely have a significant impact on the litigation of MHRA claims. When he signed the legislation, Governor Greitens touted Senate Bill 43 for bringing Missouri law in closer alignment with the standards under federal law and 38 other states’ laws.

7th Circuit Holds That Title VII’s Prohibition on Sex Discrimination Includes A Prohibition on Sexual Orientation Discrimination

On April 4, 2017, the en banc Seventh Circuit Court of Appeals overruled its own precedent and became the first Circuit to hold that discrimination on the basis of sexual orientation can constitute unlawful sex discrimination under Title VII.

Requirements for Arizona employers to stay in compliance with new paid sick leave law

In November, 2016, voters in the State of Arizona adopted Proposition 206, known as The Fair Wages and Healthy Families Initiative. As of July 1, 2017, all employers in Arizona must provide employees with paid sick leave.

St. Louis City Minimum Wage Set To Increase to $10 Per Hour

Today, the Circuit Court for the City of St. Louis, Missouri lifted an injunction that had blocked a St. Louis City ordinance increasing the minimum wage for St. Louis City businesses. This action came after the Missouri Supreme Court ruled that state law did not prohibit the higher local minimum wage.

The EEOC’s Proposed Enforcement Guidance on Unlawful Harassment

The Equal Employment Opportunity Commission (EEOC) has issued proposed enforcement guidance on unlawful harassment (the “Proposed Guidance”). The Proposed Guidance is intended to be a follow-up to the EEOC’s Select Task Force on the Study of Harassment in the Workplace in 2016 (“2016 Harassment Study”). The Proposed Guidance provides a detailed explanation of the EEOC’s position on the three components of a hostile work environment claim: 1) covered bases and causation; 2) hostile work environment threshold; and 3) liability.

Steps for Employers to Avoid Violating the Fair Credit Reporting Act

The federal Fair Credit Reporting Act (“FCRA”) outlines a strict procedure that employers must follow when they obtain criminal background reports, credit histories, and other background reports on employees and applicants from a third party which is engaged in the business of preparing such reports. All such reports are called “consumer reports” under FCRA.

Right to Work Enacted in Missouri

Governor Greitens signed the Missouri Right to Work Bill on February 6, 2017. See Missouri Senate Bill 19. It becomes effective on August 28, 2017 and applies to any new collective bargaining agreements or renewals, extensions, amendments, or modifications after the effective date.

OSHA Releases “Recommended Practices” for Anti-Retaliation Programs

The Occupational Safety and Health Administration (“OSHA”) recently released so-called “recommended practices” directed at employers who may be covered by any of the 22 whistleblower protection statutes enforced by OSHA. While these “recommended practices” are not mandatory, they are provided by OSHA to assist employers in creating workplaces free from retaliation.

Court Halts New Overtime Rules on Nationwide Basis

Just as employers across the nation were bracing for the new rules governing white-collar exemptions to the overtime laws (“the New OT Rules”), a federal district court in Texas blocked the Department of Labor from implementing them. The New OT Rules—which drastically increased the minimum salary threshold for employees classified as exempt under the executive, administrative and professional employee exemptions—were set to take effect on December 1, 2016.

DOL’s Persuader Rule Permanently Enjoined on a Nation-wide Basis by Texas District Court – May Be Sign of Things to Come for Other DOL Regulations

On November 16, 2016, the United States District Court for the Northern District of Texas (Lubbock Division) entered an order holding that the Department of Labor’s Persuader Advice Exemption Rule is unlawful and should be set aside pursuant to 5 U.S.C. § 706(2). The Persuader Rule regulations are now subject to a permanent nation-wide injunction and the DOL will be prohibited from enforcing the regulations unless and until the district court’s order is revised or reversed on appeal.

Getting Ready for the Presidential Election – Voting Leave Law

With the Presidential Election just days away, employers need to be ready to accommodate workers who may want or need to leave during the workday to cast their votes. The purpose of this blog post is to help employers prepare for the anticipated surge of political activity by providing a summary of the voting leave laws for the states of Arkansas, Colorado, Illinois, Iowa, Kansas, Missouri, Oklahoma and Texas.

A New Type of Student Union – the NLRB’s decision in Columbia University

In its August 23, 2016 decision in Columbia Univ., 364 N.L.R.B. No. 90 (2016), the National Labor Relations Board (the “Board”) ruled that graduate students working as teaching and research assistants at private universities qualify as employees for collective bargaining purposes under the National Labor Relations Act (“NLRA”) and thereby paved the way for graduate students to join or form unions. Depending on the size of the academic institution, the unionization of graduate employees could pose not only a significant financial burden but also a disruption to the completion of academic programs. This type of student union may be one that not all campuses are ready for.

EEOC’s Revised EEO-1 Rule Seeks to Identify Equal Pay Discrimination

Companies should consider examining the extent to which there may be pay disparities in their workforce. Current events and the EEOC’s revised EEO-1 Rule suggests that all regulatory agencies will be taking a much closer look at corporate pay practices in an attempt to try and root out unintentional bias that is identifiable through inexplicable differences in pay between men and women (as well as between other protected categories).

Supreme Court Refuses to Enforce the DOL’s FLSA Regulation on Car Dealership Service Advisors

On June 20, 2016, the Supreme Court of the United States held that the Department of Labor’s (“DOL”) 2011 regulation classifying “service advisors” as eligible for overtime pay under the Fair Labor Standards Act (“FLSA”) was not enforceable.

OSHA Reporting Rules Discourage Use of Mandatory Post-Accident Drug Testing

On May 12, 2016, OSHA published the final version of new reporting rules intended to “Improve Tracking of Workplace Injuries and Illnesses.”

DOL Issues New, More Expansive, Interpretation of Persuader Rule

In March of this year, the Office of Labor-Management Standards (“OLMS”) issued new regulations regarding the Persuader Rule. See 29 CFR Parts 405 and 406. The new regulations, which become fully effective on July 1, 2016, require employers and their law firms or consultants to comply with federal reporting and disclosure requirements if they engage in certain labor relations advisory activities.

Department of Labor Releases New Overtime Rules

The long anticipated DOL overtime rules have been issued. On May 18, 2016, the Department of Labor released the Final Rule governing the “white-collar exemptions” to the Fair Labor Standards Act’s (“FLSA”) overtime pay requirements. These long-awaited regulations will have substantial implications for most employers. The final rule is set to become effective on December 1, 2016.

Supreme Court Allows Representative Evidence to Establish Liability in a FLSA Collective Action

Federal Rule of Civil Procedure 23(b)(3) requires that, before a class is certified, a district court must find that questions of law or fact common to class members predominate over questions affecting only individual members.” In a recent decision by the Supreme Court, the majority explained that “[i]n a case where representative evidence is relevant in proving a plaintiff’s individual claim, that evidence cannot be deemed improper because the claim is brought on behalf of a class.” Tyson Foods, Inc. v. Bouaphakeo, et al., No. 14-1146, 2016 WL 1092414 (S. Ct. 2016).

EEOC Now Releasing Position Statements to Charging Parties

When an employee or former employee files a charge of discrimination against their employer, the EEOC has the authority to investigate. As part of the investigation, the EEOC asks the employer to submit a position statement explaining its side of the story.

EEOC Seeks Additional Pay Information from Large Employers

In a nutshell – Last week, the EEOC unveiled its proposal to seek increased amounts of data from large employers in a stated effort to “combat the persistent gender gap in employee compensation.” Practically, the proposal revises the EEO-1 form. The EEOC’s proposed changes to the EEO-1 form will require all employers with 100 or more employees to submit the new EEO-1 form and provide substantial information regarding pay ranges and hours worked as well as salary data by race, gender and ethnicity.

DOL Guidance on Joint-Employer Standard Raises a Red Flag for Businesses

On Wednesday, January 20, 2016, the U.S. Department of Labor’s Wage and Hour Division (WHD) released an administrator’s interpretation that is intended to provide guidance to employers on the WHD’s position on the joint-employer standard under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act.

Criminal Prosecution of Worker Safety Violations – New DOJ Initiative to Increase Criminal Enforcement of OSHA Matters

On December 17, 2015, the U.S. Department of Justice (DOJ) announced a major new initiative to increase the number of criminal charges in worker endangerment and worker safety cases. Although the DOJ and the Occupational Safety and Health Administration (OSHA) have had a worker endangerment initiative for a number of years, the new changes are intended to bolster the likelihood and number of criminal prosecutions which historically have languished, according to DOJ, due to the OSH Act’s misdemeanor criminal provisions.

Sexual Orientation Discrimination Claims Not Available Under MHRA, But Availability of Sex Stereotyping Claims Still an Open Question

On October 27, 2015, the Missouri Court of Appeals for the Western District issued an opinion holding that sexual orientation was not a protected category under the Missouri Human Rights Act (“MHRA”) and, as a result, the plaintiff’s sexual orientation discrimination claim was not cognizable under Missouri law. See Pittman v. Cook Paper Recycling Corp., 2015 WL 6468372 (Mo. App. W.D. Oct. 27, 2015). However, Judge Gabbert wrote a lengthy dissenting opinion and the majority opinion identified but declined to reach the question of whether a claim for sexual orientation discrimination would be actionable under the MHRA if the claim is framed as a claim for unlawful sex-based stereotyping.

Spencer Fane Team Secures Court Order Striking St. Louis Minimum Wage Increase

On October 14, 2015, a St. Louis judge declared the city’s planned minimum wage increase invalid because it conflicts with the state minimum wage, currently set at $7.65 per hour. In August, the City of St. Louis passed an ordinance that would have eventually raised the minimum wage to $11.00 per hour by 2018. The first increase to $8.25 per hour was set to take effect on October 15, 2015.

4th Cir. Says It Is Unlawful to Fire Managers That Reasonably Refuse to Take Company’s Side During Internal Investigations

In DeMasters v. Carilion Clinic, the Fourth Circuit Court of Appeals clarifies what constitutes protected oppositional activities under Title VII and refuses to extend the FLSA’s “manager rule” to Title VII retaliation claims. This case serves as an important reminder to employers that managers relaying information about harassing conduct are protected by Title VII and cannot be disciplined for disagreeing with how the company is handling a particular complaint.

The Netflix Approach to HR – Could It Work for Your Company?

Here is a little food for thought for the week. As I’m sure many of you have read, Netflix has received much praise (and some criticism alike) for its approach to company culture, talent management, and HR issues.

The NLRB Redefines the Standard for Joint Employer Status

On August 27, 2015, the National Labor Relations Board (the “Board”) issued its opinion in Browning-Ferris Industries of California, Inc. d/b/a BFI Newby Island Recyclery, and FRP-II, LLC d/b/a Leadpoint Business Services, and Sanitary Truck Drivers and Helpers Local 350, International Brotherhood of Teamsters, 362 NLRB No. 186 (August 27, 2015), which overturned longstanding precedent regarding the standard for determining if a joint employer relationship exists.  

The DOL Announces Guidance on Wage and Hour Misclassification – Employees vs Independent Contractors

The Department of Labor recently released new guidance (Administrator’s Interpretation No. 2015-1) on how it will decide whether a worker is properly classified as an employee or an independent contractor. Although the factors discussed in the Administrator’s Interpretation are not new, the DOL’s broad reading of the term “employee” under the Fair Labor Standards Act and the heightened focus on the “economic realities” of the business relationship between the worker and the purported employer indicate that wage and hour misclassification will be an enforcement priority for the DOL going forward.

The EEOC Weighs In on Sexual Orientation and Title VII

On July 16, 2015, the Equal Employment Opportunity Commission (“EEOC”) issued a 3-2 decision finding that under Title VII, sex discrimination includes actions based on sexual orientation. The decision involved an appeal from a Federal Aviation Administration (“FAA”) dismissal of a sexual orientation discrimination complaint. The issue before the EEOC was whether a complaint alleging discrimination based on sexual orientation in violation of Title VII lies within the EEOC’s jurisdiction. Apparently buoyed by the U.S. Supreme Court’s recent decision on same sex marriage, the EEOC unequivocally answered that question with a resounding “Yes.”

White Collars May Turn Blue: Prepare for New Rules on Overtime Eligibility

Responding to a call by President Obama last year, the U.S. Department of Labor this week issued a proposal to update the regulations governing which employees qualify for the “white collar” exemptions to federal minimum wage and overtime pay requirements. Currently those exemptions – for executive, administrative and professional employees – require the workers to meet job duties-related tests and receive a salary of at least $455 per week, or $23,660 annually. Certain computer and outside sales employees are also exempted.

Clarity for Colorado Employers: Colorado Supreme Court Decides that Marijuana Use is Not a “Lawful” Off-Duty Activity in Colorado

The Colorado Supreme Court has now heard and decided a case (Coats v. Dish Network) critical to Colorado employers in terms of whether the legalization of marijuana in Colorado mandates an exception to zero tolerance drug policies. The Court decided in favor of the employer, ruling that marijuana use, at least for medicinal purposes, is not a lawful off-duty activity for purposes of receiving protection under Colorado’s lawful activities statute even though state law has legalized the use of marijuana for medicinal and recreational purposes. As a result, employers may continue to maintain and enforce zero tolerance policies that include marijuana within their scope.

EEOC Begins Roll-Out of Digital Charge System. Going Forward, Administrative Filings Submitted Through Online Web Portal.

The EEOC recently announced that it will begin communicating with employers through an online Digital Charge System rather than regular mail and e-mail. The EEOC receives roughly 90,000 charges of discrimination per year. The proposed purpose of the “ACT Digital” pilot program is to ease the administrative burden of handling those charges and to reduce the use of paper submissions and files.

Courts May Review EEOC Conciliation Efforts, According to Supreme Court

In an employer friendly decision, last week the U.S. Supreme Court ruled unanimously that courts may review whether the Equal Employment Opportunity Commission (EEOC) has satisfied its duty to attempt pre-suit conciliation.

New Rule Accelerating Union Organizing Takes Effect April 14th

A new NLRB rule, known by pro-business critics as the “ambush election rule,” takes effect on Tuesday, April 14th. The rule makes it easier for unions to organize unrepresented employees through a dramatically shorter time period between the union’s filing of a representation petition and the election. Congress passed a resolution to block the rule in March, but in another victory for labor organizations, President Obama vetoed the Congressional measure.

Young v. UPS – An Important Case on Pregnancy Discrimination

On March 25, 2015 the United States Supreme Court issued its opinion in Young v. United States Parcel Service. This is an important case because it clarifies what constitutes unlawful discrimination under the Pregnancy Discrimination Act (“PDA”). Employers should carefully review this case and ensure that they are not inadvertently discriminating against pregnant employees by refusing to accommodate their temporary physical restrictions.

Policy Update: FMLA Rights Extended to Same-Sex Spouses

The U.S. Department of Labor’s (DOL) new rule broadening the definition “spouse” under the Family and Medical Leave Act (FMLA) to provide legally married same-sex couples the same rights under the law as married opposite-sex couples becomes effective on March 27, 2015.

Supreme Court Makes It Easier for Administrative Agencies to Change “Interpretive Rules”

Last week, the Supreme Court of the United States held that Interpretive Rules issued by administrative agencies do not have to undergo the notice-and-comment rulemaking procedures of the Administrative Procedure Act (“APA”) even if they contradict or substantially change previously issued Interpretive Rules. Perez v. Mortgage Bankers Association, et al., —S.Ct.—, 2015 WL 998535 (Mar. 9, 2015). Specifically, the Court held that the Department of Labor was allowed to change its position on whether mortgage-loan officers were exempt from the overtime provisions of the FLSA even though (1) it did not follow the APA’s notice-and-comment rules prior to changing its position and (2) it had taken the exact opposite position just four year earlier.

“Home Care Rule” Called Into Doubt by Federal Courts

A recent district court opinion invalidated the Department of Labor–Wage and Hour Division’s “Home Care Rule,” a regulation slated to become effective this year that would alter the scope of an exemption from the Fair Labor Standards Act’s (“FLSA”) minimum wage and overtime provisions. Health care employers that provide in-home care or in-home medical services to individual customers should watch this case closely. Whether the Home Care Rule is valid and enforceable will have major implications for the viability of many home care businesses.

New NLRB “Quickie” Election Rules – To Become Effective April 14, 2015

In December of 2014, the National Labor Relations Board (“NLRB”) issued new regulations that govern how union representation elections will be conducted. The new rules are set to become effective on April 14, 2015.  Although the U.S. Chamber of Commerce and business groups are challenging the new regulations, Employers should pay careful attention to the new rules because the rules will  require Employers to act much more quickly and to be proactive when responding to a union organizing campaign and subsequent election. This blog post highlights key aspects of the new rules.

New OSHA Reporting Rules to Become Effective Jan. 1, 2015

The Occupational Safety and Health Administration (OSHA) will celebrate 2015 by implementing new regulations relating to an employer’s duty to report work-related fatalities, injuries, and illnesses. The new regulations go into effect on January 1, 2015 for all workplaces that fall under federal OSHA jurisdiction.

Rip Van Winkle Awakens! – The NLRB Overturns Register-Guard

In their dissent to the National Labor Relations Board’s Register-Guard decision, Board Members Liebman and Walsh classically stated that “the NLRB has become the ‘Rip Van Winkle of administrative agencies. Only a Board that has been asleep for the past 20 years could . . . contend, as the majority does, that an e-mail system is a piece of communications equipment to be treated just as the law treats bulletin boards, telephones, and pieces of scrap paper.” See 351 NLRB 1110, 1121 (2007). After a seven year slumber, the Board has awoken and is attempting to get with the times. See Purple Commc’ns, Inc., 361 NLRB No. 126 (2014). A 3-2 majority of the Board adopted the logic of Liebman and Walsh’s dissent and overruled what many believed to be a canonical case on the balance between employees’ Section 7 rights and employers’ property rights.

Employers Must Wait for A More Permanent Immigration Solution

On November 20, 2014 President Obama announced that he would take executive action to further immigration reform amid Congressional gridlock. However, it is critical that employers understand the limited scope of the President’s Executive Order.

Administrative Agencies Cracking Down on Overly Broad Arbitration and Severance Agreements

The Supreme Court’s pro-arbitration and pro-alternative dispute resolution jurisprudence is being met with opposition from administrative agencies, especially the National Labor Relations Board (“NLRB”) and the Equal Employment Opportunity Commission (“EEOC”). As a result, common employment practices, such as mandatory arbitration provisions and severance agreements, are being subject to intense legal scrutiny.

Supreme Court Affirms D.C. Circuits’ Noel Canning Decision, Hundreds of NLRB Decisions May Be Moot

Last week, the United States Supreme Court held that the purported “recess appointments” of NLRB Members Block, Flynn and Griffin were unconstitutional. See N.L.R.B. v. Canning, 12-1281, 2014 WL 2882090 (U.S. June 26, 2014). Therefore, the Board will have to reconsider and reissue hundreds of prior opinions.

Kansas City Area Restaurants Targeted by Union Organizers

The Union is acting as though it is a public interest group that is seeking to increase the minimum wage to $15. But its true goal is to become the restaurant workers’ exclusive bargaining representative. First, the Union ingratiates itself with restaurant workers by advocating for a substantial increase in the minimum wage. Second, it asks the workers to sign letters that they support and will participate in a strike with other employees in support of a minimum wage increase. Then the union seeks employee signatures on union authorization cards. Finally, once it has collected a sufficient number of signed authorization cards, it files an election petition with the National Labor Relations Board (“NLRB”).

Inflexible Leave Policies can Protect the Rights of the Disabled

Last week, the 10th Circuit Court of Appeals issued its decision in Hwang v. Kansas State University, and directly addressed the legality of so-called “inflexible leave policies,” i.e., policies that set an exact limit on the amount of leave an employee can take.  In that case, Ms. Hwang was hired as a professor at Kansas State and was diagnosed with cancer.  Kansas State had a policy that allowed for no more than six months’ sick leave.  Ms. Hwang argued that this “inflexible” policy was illegal on its face.  The 10th Circuit disagreed.

Are unpaid internship programs lawful?

The Fair Labor Standards Act (“FLSA”) sets a federally mandated floor on the hourly wages of employees that are employed by for-profit employers. It also governs the maximum number of hours that an employee may work in a single week without receiving overtime pay. The number of employers that have allegedly violated the FLSA by improperly maintaining unpaid internship programs continues to grow.

Supreme Court of Missouri Overrules Prior Case Law and Adopts “Contributing Factor” Causation Standard for Workers’ Comp. Retaliation Claims

There is nothing in the entire field of law which has called forth more disagreement, or upon which the opinions are in such a welter of confusion’ than causation.” Templemire v. W&M Welding, Inc., No. SC 93132, 2014 WL 1464574, at*9 (Mo. banc April 15, 2014) (quoting Prosser and Keeton on Torts, § 41 at 263 (5th ed. 1984). In a 5 – 2 decision, the Missouri Supreme Court overruled its own precedent on the appropriate causation standard for workers’ compensation retaliation claims. Id. Plaintiffs no longer need to prove that filing a workers’ compensation claim was the “exclusive cause” of an adverse employment action. They only need to prove that the workers’ compensation claim was a “contributing factor” in their employer’s decision to take an adverse employment action against them.

FMLA Leave – 7th Circuit Rejects Participation in Ongoing Treatment Requirement

HR managers are frequently asked to decide whether employee requests for unpaid time off qualify as leave protected by the Family Medical Leave Act (“FMLA”). The FMLA gives eligible employees a right to take up to twelve weeks of unpaid leave in order to care for their spouse, son, daughter or parent if that person has a serious health condition. See 29 U.S.C. § 2612(a)(1)(C) (2013) (emphasis added). Some courts have held that “caring for a family member with a serious health condition involves some level of participation in ongoing treatment of that condition.” See Marchisheck v. San Mateo County, 199 F.3d 1068,1076 (9th Cir.1999).

Is Marijuana Use a Lawful Off-Duty Activity Under Colorado Law? Supreme Court Agrees to Decide

The Colorado Supreme Court has agreed to hear a case that will determine whether marijuana use, at least for medicinal purposes, is a lawful off-duty activity under Colorado’s statute that prohibits an employer from discharging an employee for engaging in any lawful activity off the premises of the employer during nonworking hours. The decision will directly impact whether employers in Colorado can have and implement zero tolerance drug policies that include marijuana within their scope.

For Steelworkers, Time Spent Donning and Doffing Protective Gear Not Compensable


Unionized employers do not have to compensate employees for the time they spend putting on and taking off protective gear if the collective bargaining agreement states that time spent changing clothes is not compensable. However, time spent changing into and out of non-clothes is compensable even if the collective bargaining agreement states otherwise.

Employees Accepted Arbitration Program by Failing to “Opt-Out”

Frank Neuner discusses best practices for implementing a legally enforceable arbitration program through the use of opt-out provisions.

Seventh Circuit Rejects Employer’s Ability to Assert “Failure to Conciliate” Defense Against EEOC

Megan Meadows analyzes a recent Seventh Circuit case holding that employers may not assert a “failure to conciliate” defense after they are sued by the EEOC.

Oral Argument Casts Doubt on Validity of Recess Appointments to the NLRB

David Wing offers his perspective on the oral arguments before the U.S. Supreme Court in the case of Noel Canning v. NLRB, involving the validity of President Obama’s recess appointments to the National Labor Relations Board in January 2012.

Prevailing Defendants Can Recover Costs Incurred After Plaintiff Rejected Offer of Judgment in MHRA Case

This post discusses a recent decision by the Missouri Court of Appeals allowing a prevailing employer to recover costs incurred in a case filed under the Missouri Human Rights Act after the plaintiff had rejected an offer of judgment. 

Free Speech Rights of Government Employees – More Limited Than You Might Think

Brian Peterson discusses a recent Seventh Circuit decision affirming summary judgment against a Chicago teacher who was suspended after voicing concerns about certain practices at her school.

Fifth Circuit Rejects NLRB’s Class Action Waiver Ban

This article discusses the recent decision reversal by the U.S. Court of Appeals for the Fifth Circuit regarding the National Labor Relations Board’s D.R. Horton decision.

Is OSHA Now Enforcing EPA’s Laws? OSHA to Use TRI Release Data for Targeted Inspections

On November 12, 2013, OSHA Region 7 announced a new Local Emphasis Program applicable in the states of Kansas, Nebraska, and Missouri, that will specifically target companies for OSHA inspections based on their Toxic Release Inventory (TRI) submissions to the U.S Environmental Protection Agency (EPA).

Kansas Abolishes Assumption of the Risk Defense for Inherently Dangerous Workplaces

Stephanie Lovett-Bowman discusses the Kansas Supreme Court’s recent case holding that the “assumption of the risk” defense will no longer be available to employers who operate “inherently dangerous workplaces” as a complete bar to recovery.

Paying the Salary of Certain Union Officers Held to Be Unlawful

This post analyzes a recent Seventh Circuit case holding that an employer’s agreement to pay the full-time salaries of union officers was illegal and could not be enforced by the union.

Top Tips: Holiday Parties – Practical Guide for Employees

Sue Willman provides general guidelines for employers hosting holiday parties that may help to reduce or minimize potential liability.

Practical Suggestions for Dealing with Issues Regarding Social Media, the ADA and Independent Contractors – Part III

On October 15, 2013, Ron Fano, Jamie Cotter, and Phil Quatrochi presented the webinar addressing practical suggestions regarding issues implicating the ADA, independent contractor status, and social media. If you were unable to attend you may view the session recording by clicking here
The webinar generated several interesting questions with broad application. We have previously posted questions and answers regarding the ADA and independent contractors.  Today, the series concludes with the social media topic.

Practical Suggestions for Dealing with Issues Regarding Social Media, the ADA and Independent Contractors – Part II

On October 15, 2013, Ron Fano, Jamie Cotter, and Phil Quatrochi presented a webinar addressing practical suggestions for proactively dealing with issues implicating the Americans with Disabilities Act, independent contractor status, and social media. If you were unable to attend, you may view the session recording by clicking here.
The webinar generated several interesting questions with broad application. In our previous post, we discussed questions involving reasonable accommodations under the ADA.  Today, we address a question involving independent contractor classification. 

Practical Suggestions Regarding Social Media, the ADA and Independent Contractors – Part I

On October 15, 2013, Ron Fano, Jamie Cotter, and Phil Quatrochi presented a webinar addressing practical suggestions for proactively dealing with issues implicating the Americans with Disabilities Act, independent contractor status, and social media. If you were unable to attend you may view a recording of the session by clicking here.  
The webinar generated several interesting questions with broad application. Today, we answer two of these questions (regarding the ADA), and we will address others in upcoming posts.

Top Tips: Dual-Use Devices in the Workplace

Denise Portnoy and Dave Kight provide the following tips on how to reduce the risks of dual-use devices used by employees in the workplace.

Workplace Dress Codes: The Issue We Love To Discuss But Hate To Manage

Brian Peterson discusses how some employers’ handling of workplace dress codes has led to lawsuits and bad publicity, and offers several best practices in this area.

Missouri Appeals Court Invalidates Arbitration Agreement Placed In Employee Handbook

Megan Meadows discusses a recent case from the Missouri Court of Appeals invalidating an arbitration agreement between an employer and employee that was placed within the company’s “Employee Handbook”.

Top Tips: Handling Inspections by OSHA & Other Government Agencies

Andrew Brought provides useful information in responding to OSHA and other government inspections of facilities.

Straight Talk: OFCCP’s Final Disability Rules Significantly Expand Federal Contractors’ Obligations

This article discusses the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) recently enacted Final Rule making changes to the regulations implementing Section 503 of the Rehabilitation Act (“Section 503”). Section 503 prohibits federal contractors and subcontractors (“contractors”) from discriminating in employment against individuals with disabilities (“IWDs”) and requires the employers to take affirmative action to recruit, hire, promote, and retain these individuals.

Update: OFCCP’s New VEVRAA and Disability Rules Published, Effective March 24, 2014

This post discusses an alert for federal contractors that the OFCCP’s new rules designed to improve employment opportunities for protected veterans and qualified workers with disabilities were published in the Federal Register on September 24, 2013 and, therefore, become effective March 24, 2014.

VETS 100 and VETS 100A Reporting Deadline Extended to October 31, 2013

This post discuses about the filing deadline for VETS 100 and 100A reports which has been extended to October 31, 2013 (from September 30, 2013).

“Sorry, Your Former Employee’s MHRA Claim Was Untimely, But You’re Too Late To Challenge It”

Frank Neuner and Brian Peterson discuss an important new case that requires employers to be vigilant about taking steps before a lawsuit is filed in order to preserve certain defenses to discrimination claims.

Bottom Line: What Revised VEVRAA Regulations Really Mean for Federal Contractors

This article discusses and analyzes the Office of Federal Contract Compliance Programs (“OFCCP”) long-awaited release of a Final Rule that substantially impacts federal contractors’ and subcontractors’ compliance obligations to take affirmative action to recruit, hire, promote, and retain protected veterans under the Vietnam Era Veterans’ Readjustment Assistance Act (“VEVRAA”).

Top Tips – The FLSA and Unpaid Interns

Sue Willman identifies the factors under the FLSA that must be met for an intern to legally work without pay in the private, for-profit sector.

OSHA Proposing to Adopt Stricter Silica Dust Exposure Limits and Work Practice Standards

On August 23, 2013, OSHA issued a Notice of Proposed Rulemaking designed to reduce the permissible exposure limit (PEL) associated with silica dust exposure. OSHA is proposing a new PEL for respirable crystalline silica (quartz, cristobalite, and tridymite) of 50 μg/m3 in the general industry, construction, and shipyard sectors, a standard anywhere from two to five times more stringent than current PELs that date back to 1971.

Same-Sex Marriages Recognized for Federal Tax Purposes Regardless of Where Taxpayers Live

The Internal Revenue Service has issued guidance (in the form of a revenue ruling and two sets of Frequently Asked Questions) clarifying that same-sex couples that are legally married will be treated as married for purposes of federal income, gift and estate taxes, regardless of whether the couple lives in a state that recognizes same-sex marriage or a state that does not.  However, couples in domestic partnerships or civil unions will not be treated as “married” for federal tax purposes.  The ruling, which is effective as of September 16, 2013, generally applies prospectively, although individual taxpayers will have the opportunity to file amended tax returns (and claim refunds for taxes paid) for “open” tax years.   The IRS intends to issue additional guidance regarding the extent, if any, that the ruling applies to retirement plans and other tax-favored arrangements for periods prior to the effective date of the ruling.

Nebraska Supreme Court Weighs in on Tax Implications of Jury Verdicts

Josh Dickinson and Shilee Mullin analyze a recent case from the Nebraska Supreme Court, holding that the entire amount of a general-verdict award for an on-the-job injury should be considered lost wages for tax withholding purposes.

Top Tips: Pay Issues for Nurses and Nannies Working in Your Home

As President Clinton’s would-be Attorney General learned to her embarrassment in the 1990s, even a single domestic working in a residence can trigger reporting and withholding duties on the part of a household employer. 

Missouri Court of Appeals Rejects Expansion of Public Policy Exception to At-Will Employment

This post discusses a recent case from the Missouri Court of Appeals rejecting the claim of an employee of a car dealership who lost his job when his girlfriend bought a car at another dealer. The court held that the public policy exception to the at-will employment doctrine did not apply.

Top Tips Part V – Tips for Employers in Preventing/Addressing Workplace Violence

Sue Willman concludes her five-part series on workplace violence, discussing measures employers can take when violence or the threat of violence arises.

Top Tips Part IV – Tips for Employees in Preventing Workplace Violence

Sue Willman continues her series providing tips for employees in preventing workplace violence.

Top Tips Part III – Warning Signs of Workplace Violence

Sue Willman continues her series addressing warning signs of workplace violence.

Top Tips Part II – Perpetrators and Triggers of Workplace Violence

Sue Willman continues her series on workplace violence addressing perpetraators and triggers of workplace violence.

Top Tips Part I – Levels of Workplace Violence

In the first of a 5 part series regarding workplace violence, Sue Willman discusses levels of workplace violence.

Governor Nixon Signs Important Fix to Workers’ Compensation Law, Reversing case law interpretations regarding Occupational Disease

Kelly Campbell discusses a new Missouri law addressing two prominent issues related to workplace injuries and illnesses.  First, the bill makes it clear that certain occupational diseases are covered under the state’s Worker’s Compensation law.  Second, the law provides additional funding for the Second Injury Fund, which provides employers an incentive to hire disabled workers.

Top Tips: Workplace Violence Series

In response to a number of inquiries for information about workplace violence, Sue Willman has drafted a five-part series.

D.C. Circuit Rejects Department of Labor’s Interpretation Regarding Exemption Status of Mortgage Loan Officers

This article analyzes the impact of a recent ruling by the D.C. Circuit Court of Appeals vacating a Department of Labor opinion that mortgage loan officers are entitled to overtime pay under federal law.  The case could impact many lawsuits filed by the plaintiffs’ bar since 2010, claiming that banks misclassified loan officers as exempt from overtime.

Is Supreme Court “Waiving” Goodbye to Class Actions?

Frank Neuner discusses a recent Supreme Court decision enforcing a class action waiver in an arbitration agreement.  Although the case involved a dispute between merchants and a credit card company, the case is likely to help employers seeking to enforce arbitration agreements with similar waivers.

Fraud in the Workplace

What should you do if you discover or suspect that one of your employees is committing fraud or stealing from the company?  Bryant Lamer discusses best practices. 

Supreme Court Limits Title VII Strict Liability by Narrowing the Definition of Supervisor

Stephanie Lovett-Bowman discusses the U.S. Supreme Court’s ruling Monday, June 24, 2013 clarifying the definition of the term “supervisors” under Title VII of the Civil Rights Act.

Top Tips – Sick Days – Part II

Jamie Cotter continues the discussion regarding employers effectively communicate their sick day policy with employees.

Retaliation Claim Upheld Even When Employee Was Only Perceived To Be Engaged In Protected Activity

Josh Dickinson discusses a case finding that retaliation protection may be triggered by the employer’s perception that the employee intended to engage in the protected activity of filing a workers’ compensation claim.”.

Top Tips – Sick Days – Part I

Jamie Cotter discusses the importance for employers to effectively communicate their sick day policy with employees.

Update on Colorado Law Legalizing Recreational Marijuana

Ron Fano discusses Amendment 64 which was recently made a part of Colorado’s Constitution. While portions of the law pertaining to the sale of marijuana and the adoption of standards governing impairment will not go into effect until the adoption of regulations in 2013, as of yesterday, marijuana possession and use is now legal as a matter of Colorado law.

Missouri Court of Appeals Confirms Non-Compete Enforceable if Given After Employment Starts

This article discusses a new Missouri Court of Appeals ruling which addresses the enforceability of a non-compete signed after employment started.  The Court declared the non-compete enforceable.

OFCCP Issues Notice 2010 Census Data Must Be Used as of January 1, 2014

This post discusses OFCCP’s recent notice to federal contractors regarding use of the 2010 census data.

Two New Laws for Colorado Employers to Wrestle With As Work Place Antidiscrimination Bill and Credit Check Prohibition Bill Signed into Law

Spencer Fane’s Ron Fano discusses two new bills signed into law by Colorado’s Governor. These bills will impact Colorado employers in potentially significant ways.

DC Circuit Blasts NLRB’s Employee Notice Rule

Dave Wing discusses the United States Circuit Court of Appeals for the District of Columbia Circuit decision yesterday that the National Labor Relations Board (“NLRB”) lacked authority to issue a rule requiring employers to post a notice to employees advising them of their rights under the National Labor Relations Act (“NLRA”) and imposing procedural and substantive remedies on employers who failed to post the notices. NAM v. NLRB, ____ F.3d _____, No. 12-5068 (DC Cir. May 7, 2013).

Iowa Federal Jury Awards $240 million to Plaintiffs in ADA Case

This article discusses a huge jury verdict for the EEOC in Davenport, Iowa. The $240 million verdict is the largest verdict in the EEOC’s history.

Kansas Enacts New Law Clarifying Payroll Deductions for Employees

This article discusses the new law passed in Kansas which addresses payroll deductions for employees both while employed and in their final paychecks. The new law clarifies questions that employment practioners frequently get on what and when can be deducted.

Top Tips: What To Do When Litigation Happens – Part II

Doug Weems reminds employers although litigation risks can be minimized, litigation is a fact of life in the United States.

Top Tips: Achieving a Better Workplace through Education and Training

Denise Portnoy provides the following tips on how to achieve a better workplace through education and training.

The Supreme Court Remains Mute on the Issue of What It Takes to Moot a Named Plaintiff’s Claims in a FLSA Collective Action

Today in a 5-4 decision, the Supreme Court held that an offer of judgment that fully satisfies the claims of a named plaintiff in a FLSA collective action may eliminate the case if the offer of judgment moots the plaintiff’s claims. In Genesis Health Care Corporation v. Symczyk, the plaintiff had declined a Rule 68 offer of judgment made by the defendant. Specifically, the defendant had offered $7,500 back wages and an amount of attorney’s fees and costs to be determined by the court. The offer was left open for ten days. The plaintiff did not accept the offer. The district court held that because the offer was for the full amount of the plaintiff’s claim, no controversy remained, thus depriving the court of subject matter jurisdiction. On appeal, the Third Circuit agreed that the plaintiff’s claim was moot but reversed the district court, holding that such attempts to “pick off” a named plaintiff’s claim in a collective action would frustrate the goals of such actions.

Missouri Appeals Court Declares Use of False Employment Records a Forgery

This article discusses six new Missouri Court of Appeals Decisions declaring an applicant’s use of false employment documents in order to get a job is a forgery in Missouri turning down a challenge that the crime was pre-empted by federal immigration laws.

Don’t Fumble the Ball With Your Arbitration Program

The Kansas City Chiefs recently suffered two losses on the same day. Weird, you might think, because the NFL does not schedule double-headers, and it’s the offseason anyway. Those setbacks, however, did not occur on the football field, but rather in court. Their opponents were a pair of former employees, and the subject was an arbitration agreement that the organization required its workers to sign.

Plaintiff’s Dishonesty Regarding Physical Condition After Posting Facebook Vacation Photos Sufficient to Defeat Her FMLA Claim

Megan Meadows discusses a recent decision by the United States District Court for the Eastern District of Michigan in which the Court granted summary judgment to Detroit Medical Center (“DMC”) after it fired a nurse shortly after her return from FMLA leave. The employee, while on FMLA leave for severe back pain, took a pre-planned vacation to Mexico. While on vacation, the employee soaked up the sun while riding in motorboats and drinking beer. She posted pictures of these activities to Facebook after her return, still on FMLA leave. Several of the employee’s co-workers saw these pictures and informed their supervisor that they believed this to be misuse of FMLA leave.

Top Tips: Maintaining Attorney-Client Privilege of Communications with In-House Counsel

While many employers and employees believe that all communications with the employer’s in-house counsel are subject to the attorney client privilege, the scope of the privilege when communicating with in-house counsel is actually much more limited.

Revised I-9 Form Now Available and Will Be Mandatory Effective May 7, 2013

The Department of Homeland Security (DHS) released on Friday, March 8, 2013 its new Form I-9 (Employment Eligibility Verification) that all employers are required to use to verify the identity and employment authorization eligibility of their employees. The new form may be used immediately, but must be used beginning no later than May 7, 2013.

Colorado Court Dismisses Pregnancy Discrimination Claim By Returning Mother Who Wanted to Avoid Travel

May an employer insist that an employee who is recently back from maternity leave comply with increased travel requirements that were instituted while she was out on leave? The answer, according to the United States District Court for the District of Colorado, is “yes.”

Top Tips: Avoiding Employee Retaliation Claims

Retaliation claims are now the #1 type of complaint filed with government agencies. Many recent cases have shown that employers can succeed at defeating an employee’s underlying discrimination claim, and yet be found liable for retaliating against that employee for complaining about the unfounded discriminatory conduct

Protect Customer Relationships with Non-Competes

Frank Neuner discusses a decision recently handed down by the Missouri Court of Appeals highlighting a challenge that companies face in trying to protect customer relationships when they do not require their employees to sign non-compete or non-solicitation agreements.

Kansas Supreme Court Rules Exotic Dancers Are Employees, Not Independent Contractors

Denise Portnoy discussed a case in which the Kansas Supreme Court recently ruled exotic dancers are employees of the club where they work, not independent contractors for purposes of unemployment insurance. The Court’s decision in Milano’s, Inc. v. Kansas Department of Labor concludes a seven-year legal battle over the employment status of dancers at Club Orleans, a Topeka gentlemen’s club owned by Milano’s, Inc.

OSHA Publishes HazCom Guidance on New Labeling and Training Requirements

Employers subject to OSHA’s Hazard Communication Standard (HazCom), 29 CFR 1910.1200, should already be well aware of the major changes pending to OSHA’s HazCom Standard as a result of revisions in 2012. While compliance with the technical aspects do not take effect until June 1, 2015, employers must train employees on the new labeling requirements and format for Safety Data Sheets by no later than December 1, 2013. In an effort to assist employers with that training and in understanding the new labeling and pictogram requirements, OSHA recently published guidance materials in February 2013 on the new HazCom labeling and training requirements.

8th Circuit Affirms Verdict Requiring Employee to Return $735,000 Severance Payment After She Disclosed Confidential Information

If you thought there was nothing an employer could really do when a departed employee discloses the employer’s confidential information, think again. Last week, the Eighth Circuit Court of Appeals upheld a jury verdict requiring a former vice president of marketing to pay Hallmark $735,000 – the entire payment the company had given her under a severance agreement – after she disclosed confidential information to a competitor

NLRB Requires Employers to Bargain with Newly Elected Unions

Denise Portnoy writes about another pro-union decision by the National Labor Relations Board (NLRB) which opens a new line of attack for unions to challenge disciplinary action. The Board now requires employers to bargain with newly elected unions over pre-contract discretionary discipline.

OFCCP Announces Target Dates for Revised Federal Contractor Affirmative Action Rules

This article discusses OFCCP Director Patricia Shiu’s recent announcement of the target dates in 2013 for releasing the long-anticipated (and hotly debated) revised federal contractor affirmative action regulations.

Missouri Court Reminds Employers to Get Non-Competes

The Missouri Court of Appeals yesterday issued a ruling which found that in most cases, customer contacts do not qualify as trade secrets.

FMLA Leave for Employees with Adult Disabled Sons and Daughters

While the Family Medical Leave Act (“FMLA”) and Americans with Disabilities Act (“ADA”) are separate statutes administered by separate governmental agencies, they are interconnected with respect to an employee’s right to take FMLA leave to care for an adult son or daughter who is incapable of self-care because of an ADA disability. On January 14, 2013, the Department of Labor Wage & Hour Division issued Administrator’s Interpretation No. 2013-1 to clarify this issue.

Update on the Enforceability of Employment Contracts That Contain Mandatory Arbitration Agreements

The United States Court of Appeals for the Eighth Circuit released its Owen v. Bristol Care, Inc. opinion on January 7, 2013. The Court held that mandatory arbitration provisions containing “class action waivers” are valid and enforceable in cases arising under the Fair Labor Standards Act (“FLSA”). This means that Eighth Circuit courts must enforce employment contract provisions that prohibit class-wide arbitration of FLSA claims and require employees to individually arbitrate any claim they may have against their employer. Among claims that are affected are those for unpaid overtime and wages.

Federal Contractors Must Proactively Prepare for OFCCP Audits

This article discusses practical advice regarding steps federal contractors can take to proactively prepare for an Office of Federal Contract Compliance Programs (“OFCCP”) audit.

Top Tips: Wages and Inclement Weather

Winter is coming. And winter brings snow, ice, sub-zero temperatures, and employee absences caused by those conditions. An employer will want to take steps to ensure its employees know the consequences of missing work due to inclement weather before the snow starts to fly.

Supreme Court Upholds Employment Arbitration Provision

In a ruling likely to encourage the use of arbitration agreements in employment, the U.S. Supreme Court on Monday, November 26, 2012 ruled that it was improper for a court to evaluate whether or not an arbitration agreement was valid. Instead, the Supreme Court ruled that it was the obligation of the arbitrator to determine if the agreement was valid.

Top Tips: Holiday Parties: Practical Guidelines for Employers

The holiday season is drawing near. Employers often sponsor holiday parties and provide alcohol at these functions. A common concern among employers is their potential liability for furnishing alcohol to their guests should the guest be involved in a vehicle accident afterwards.

“I Voted”: Missouri Voting Laws

Missouri law provides employees with three consecutive hours to vote on Election Day. This statute affects only employees who do not have three consecutive hours on Election Day to go to the polls and vote.

Employment Verification in Colorado: New Compliance Requirement

Ron Fano writes about Colorado’s Employment Verification Law which, effective October 2, 2012, requires employers to use the Colorado Department of Labor and Employment’s verification form establishing that an appropriate inquiry was done into the legal status of all newly hired employees.

Employer’s Duty Under Kansas Law to Provide Time Off to Vote

Missouri law provides employees with three consecutive hours to vote on Election Day. This statute affects only employees who do not have three consecutive hours on Election Day to go to the polls and vote.

Time to Vote: Nebraska Voting Laws

This article discusses an employer’s duty under Nebraska law to allow an employee time off to vote.

Supreme Court Finds Pharmaceutical Representatives Exempt From Overtime

In Christopher v. Smithkline Beecham Corp., — U.S. —, 2012 WL 2196779 (2012), the Supreme Court of the United States held that pharmaceutical sales representatives qualify as “outside salesmen” and are therefore exempt from the overtime pay requirements of the Fair Labor Standards Act (“FLSA”). In addition to being welcome news for pharmaceutical companies, this case may be a harbinger of less judicial deference to regulatory agencies under certain circumstances.

Employee’s Entitlements With Respect to Voting in Colorado

Jamie Cotter writes about the relevant Colorado statutes governing employee’s entitlements with respect to voting.

EEOC: Overly Broad Use of Criminal Background Checks May Violate Law

Employers increasingly are conducting criminal background checks on applicants and employees. Frank Neuner weighs in on this issue and how the EEOC is addressing.

Top Tips: Performance Review

Performance reviews are critical for maintaining a workplace of engaged, productive, effective employees.

Employer Not Liable for Retaliatory Discharge Under Kansas Wage Payment Act

This article discusses a recent Kansas Court of Appeals case holding an employer cannot be liable for retaliatory discharge for firing an employee to avoid paying commissions owed under the Kansas Wage Payment Act.

Top Tips: Core HR Policies All Employers Should Have in Writing

Sue Willman identifies 10 “core” HR policies that all employers should to have in writing.

Watch Your Mouth: Creating Oral Employment Contracts in Colorado

Phil Quatrochi discusses an important issue for Colorado employers. While many employers believe that any contract for employment must be in writing, employment contracts in Colorado can be created orally. Colorado employers, therefore, need to be aware of the types of casual or careless comments to an employee that may create an employment contract where none was intended.

Top Tips: What to do When Litigation Happens

Doug Weems discusses what to do when litigation happens. Although litigation risks can be minimized, litigation is a fact of life in the United States.  Here are some suggested steps to take if you or your company is sued.

Employer’s Honest Belief Governed Decision to Fire says Court

This article discusses a recent 8th Circuit case in which the Court rejected an ADA / FMLA lawsuit filed by an employee who was fired because the employer reasonably believed that the employee was refusing mandatory work to go to a casino to gamble.

Big Changes Ahead for OSHA’s HazCom Standard

Andrew Brought discusses an update on OSHA’s Hazard Communication Standard (HazCom), 29 CFR 1910.1200,and its significant facelift. By OSHA’s own estimate, over 5 million workplaces across the country will be affected by the revised regulations.

Historical Happenings: Missouri Human Rights Act Anniversary This Month

Casey Murray discusses the fact that fifty-three years ago this month, a new era in Missouri employment law began. Although it was passed on June 8, 1959, the provisions of the Missouri Human Rights Act (“MHRA”) became effective on August 29, 1959. The MHRA and its subsequent amendments prohibit discrimination in employment due to a person’s race, color, religion, national origin, ancestry, sex, disability or age (40 through 69).

Missouri Supreme Court Upholds Non-Compete But Strikes Provisions Related to Clients

This article discusses a new case in which the Missouri Supreme Court has once again upheld the right of employers to have post-employment restrictive covenants. However, the Missouri Supreme Court ruled that a restriction which bars competition with all clients, regardless of the employee’s involvement invites scrutiny and will possibly be struck down.

California’s Hostility to Arbitration Agreement is Changing

This article discusses the changing views of California courts to employment arbitration agreements.  After years of opposing these agreements, California courts appear to be enforcing them.

Top Tips: Complying with Colorado’s Wage Claim Act

Ron Fano discusses the Colorado Wage Statute and obligations employers have when employees terminate their employment.  If you are not familiar with this law, you could easily miss some of the key requirements.

Employers Told to Keep Using I-9 Forms Past Expiration Date

Dave Wing discusses the recent announcement by the U.S. Citizenship and Immigrations Services (USCIS) regarding use of the current Form I-9 even after its expiration date of August 31, 2012.  Employers must complete Form I-9 for all newly-hired employees to verify their identity and authorization to work in the United States. USCIS will provide updated information about the new version of the Form I-9 as it becomes available. Employers may subscribe to I-9 Central at the above link to get updates about Form I-9.

**Update** – Minimum Wage Ballot Measure Stopped

Despite a win at the Missouri Supreme Court on the procedure to get a ballot measure on the November 2012 election ballot, the Missouri Secretary of State ruled that the ballot measure failed to get enough signatures and would not be on the ballot after all.

Top Tips: Document Retention – Do you know when to hold’em?

This article discusses recent legal decisions show that courts continue to raise the bar on the requirement to retain, search and produce records relevant to litigation. These court decisions often result in severe sanctions against employers who fail to follow retention rules. They serve as a sobering reminder that employers should take care to preserve potentially relevant information upon becoming aware of a possible claim.

Historical Happenings: Americas with Disabilities Act marks 22 years since it was signed

Twenty-two years ago today the Americans with Disabilities Act was signed into law. Since that time, it has been litigated, amended and discussed constantly.

Top Tips: Reviewing Non-Compete Agreements

Reviewing an employment agreement can be daunting. These Top Tips should help employers in their initial reviews.

Top Tips: Know When to Hold ‘Em: Preserving Records During Litigation

Recent legal decisions show that courts continue to raise the bar on the requirement to retain, search and produce records relevant to litigation.

Benefits Aspects of Employee Leaves of Absence – A Webinar to Address the Inevitable Questions

In this 90-minute webinar, Rob Browning and Dave Wing will focus on the benefits aspects of employee leaves of absence. But where needed to flesh out the full picture, they will address the employment-related constraints, as well.

Missouri Abolishes Co-Employee Negligence Liability

On July 10, 2012, in a positive development for Missouri employers, Governor Jay Nixon signed into law H.B. 1540, an amendment to the Worker’s Compensation statute that effectively prevents liability of individual employees for workplace injuries caused by negligence. The law essentially overturns a Missouri Court of Appeals decision that allowed such lawsuits.

Top Tips for Preventing Workplace Harassment Lawsuits

Bad behavior in the workplace, regardless of whether it is unlawful, results in less productive employees and poor morale which can lead to costly and disruptive lawsuits.

Historical Happenings: Civil Rights Act of 1964 Turns 48 Years Old

The Civil Rights Act was enacted on July 2, 1964. A landmark piece of legislation, the Act outlawed major forms of discrimination against minorities and women, including racial segregation.

Top Tips for Reviewing Restrictive Agreements

Reviewing an employment agreement can be daunting.  These top tips should help employers in its initial review.

Supreme Court Finds Pharmaceutical Sales Representatives Exempt From Overtime Requirements of the FLSA

Yesterday, in Christopher v. Smithkline Beecham Corp., — U.S. —, 2012 WL 2196779 (2012), the Supreme Court of the United States held that pharmaceutical sales representatives qualify as “outside salesmen” and are therefore exempt from the overtime pay requirements of the Fair Labor Standards Act (“FLSA”).  In addition to being welcome news for pharmaceutical companies, this case may be a harbinger of less judicial deference to regulatory agencies under certain circumstances.

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