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Paul D. Satterwhite

Partner

Spencer Fane attorney Paul Satterwhite

Major Changes in Colorado Non-Compete/Non-Solicitation Law Set To Become Effective on August 10, 2022

On August 10, 2022, major changes in Colorado law go into effect for restrictive employment covenants, i.e., covenants not to compete (non-competition covenants) and covenants not to solicit customers of an employee’s former employer (non-solicitation covenants). For many years, Colorado has limited non-competition covenants by statute, Colorado Revised Statutes §8-2-113, which prohibits non-competition covenants with specified exceptions, including when they are part of a contract for sale of a business. The most frequent and heavily litigated exception in the old law permitted an employer to require non-competition covenants for executive and management personnel, and for officers and employees who constitute professional staff to such personnel. Courts and parties frequently wrestled with the question whether an employee had been an “executive” or “management” personnel of the former employer.

Supreme Court Overrules Roe v. Wade – Employers Must Think Carefully About How to Respond

On Friday June 24, 2022, the United States Supreme Court issued a decision that overrules Roe v. Wade. See Dobbs et al. v. Jackson Women’s Health Org. et al., Case No. 19-1392 (slip opinion). According to the decision, the federal constitution does not bestow the right to an abortion or protect an individual woman’s personal liberty interest concerning the same, but rather each state may fully regulate and outright ban or criminalize procedures as each state sees fit. As is discussed further below, this decision has important implications for employers that will now need to carefully review and potentially tailor their policies to accommodate individual states’ varying views on the legality and morality of abortion and individual liberty interests.

OSHA to Publicize Employers’ Injury and Illness Data Under Proposal, Announces Separate Enforcement Focus

With a stated goal of increasing transparency and preventing workplace injuries and illness, employers across a wide spectrum of industries need to be aware of two separate recordkeeping and reporting efforts by OSHA.  On April 5, 2022, the agency outlined a new enforcement initiative for employers failing to submit 300A annual electronic submissions as required under 29 CFR 1904.41.  OSHA’s new enforcement priority comes on the heels of the agency’s March 28, 2022, proposed rule that would significantly alter the manner and methodology of workplace injury and illness reporting.

Sexual Harassment Claims and Arbitration Agreements

On February 10, Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (the “Act”) and sent the Act to President Biden for signature. President Biden is expected to sign the bill quickly this week, which will become law immediately upon signature by the President.

OSHA Withdraws Emergency Temporary Standard and Signals Further Actions to Come

On January 25, 2022, the Occupational Safety and Health Administration (“OSHA”) announced that it was withdrawing the Vaccination and Testing Emergency Temporary Standard (the “ETS”). This withdrawal was made in light of the Supreme Court’s ruling on January 13th which stayed the implementation and enforcement of the ETS. We discussed the Supreme Court decision here. In its decision, the Court signaled that OSHA might be able to successfully promulgate industry-focused standards that include vaccination and testing components.

Supreme Court Issues Vaccination Mandate Decisions: Where We Stand Today

Big Picture

Today the United States Supreme Court issued a decision staying implementation and enforcement of the Emergency Temporary Standard (“ETS”) issued by the federal Occupational Safety and Health Administration (OSHA) requiring employers with 100 or more employees to adopt policies mandating COVID-19 vaccination and testing, at least while legal challenges to the ETS proceed through lower courts.  This means that for now, employers covered by the federal ETS are not required to comply with it.

OSHA’s Healthcare ETS in Limbo: What are Employers to do?

On December 27, 2021, OSHA issued a statement to address the confusion surrounding the status of the Healthcare Emergency Temporary Standard (the “Healthcare ETS”) implemented on June 21, 2021.  The confusion arose because the Healthcare ETS was a temporary standard that was intended to be effective until it was replaced by a permanent standard.  However, the OSH Act provides that the permanent standard should be promulgated within six (6) months from the adoption of the temporary standard.  This means that OSHA needed to implement a permanent standard to replace the Healthcare ETS by December 20, 2021.  This did not occur.

Quarantines and Isolations – What Employers Need to Know About the New CDC Guidance

On Monday, December 27, 2021, the Centers for Disease Control and Prevention (CDC) provided new guidance[1] regarding quarantine and isolation periods for those who test positive for COVID-19 and those who have been exposed to COVID-19. The guidance comes at a time when COVID-19 cases are rising across the country, likely because of the new highly-transmissible Omicron variant. The CDC’s guidance is not a “mandate” of any sort, but rather, serves as a recommendation that can be used by employers when addressing staffing shortages and determining when to safely permit or require employees who have been infected or exposed to return to work.

Many Employers Caught Off-Guard by Deadline for Ensuring 911-Calling Compliance

The Ray Baum’s Act (the “Act”) requires companies to implement additional safeguards related to dialing 911 from the companies’ phone systems, including any software programs used by computers to make phone calls.  Aspects of the Act related to landlines/VOIP phones are already in effect and are less controversial.  However, many companies have been caught off-guard given the Act applies to software technology and enforcement of the Act begins January 6, 2022.  Many companies utilize software programs like Jabber, Webex, Teams, Zoom, and other platforms that allow for the ability to make phone calls from a computer.

Supreme Court to Hear Challenges on Federal Vaccine Mandates from OSHA and CMS

Late on Wednesday, December 22, the United States Supreme Court announced that it will hear oral arguments on January 7, 2022, on several consolidated cases challenging the Emergency Temporary Standard (“ETS”) issued by the Occupational Health and Safety Administration (OSHA) requiring that employers with 100 or more employees adopt vaccine mandate and testing policies, as well as the vaccine mandate imposed on certain health care facilities under the Interim Rule issued by the Centers for Medicare & Medicaid Services (CMS).

OSHA Sets January 10 Deadline for Employers to Implement Mandatory Vaccinate or Test Requirements, Following Federal Appeals Court Victory

Employers with 100 or more employees have until January 10, 2022, to implement the obligations required under the mandatory vaccinate or test requirements in OSHA’s Emergency Temporary Standard issued on November 4, 2021, as published in the Federal Register at 86 Fed. Reg. 61402 (Nov. 5, 2021).  Even though the ETS is now effective, the agency is granting a short time period for companies to satisfy the requirements.

CMS Vaccine Mandate Rule Blocked in 10 States (including Kansas, Missouri, and Nebraska)

A Missouri-based federal judge issued an order today partially blocking the Biden Administration from implementing the emergency regulation issued by the Centers for Medicare & Medicaid Services (CMS) on November 4, 2021, that mandated COVID-19 vaccination by January 4, 2022, for the employees and contractors of covered health care facilities participating in the Medicare and Medicaid programs. The order, known as a preliminary injunction, is temporary in nature, although it could eventually become permanent if the lawsuit is successful.

OSHA Halts Implementation and Enforcement of ‘Large Employer’ COVID-19 ETS (At Least for Now)

On November 12, 2021, the Fifth Circuit Court of Appeals issued a decision in which it reaffirmed its prior temporary injunction against implementation or enforcement of the Occupational Safety and Health Administration’s Emergency Temporary Standard (the “ETS”) mandating COVID-19 vaccination and testing. The November 12 decision reaffirmed a prior stay issued on November 6th and found that the ETS was both overbroad and under-inclusive. The court found the ETS overbroad because it failed to consider that COVID-19 is “more dangerous to some employees than to other employees.” BST Holdings, L.L.C. et al. v. Occupational Safety and Health Administration, et al., No. 21-60845, slip. op at 13. The court found it underinclusive because even the most vulnerable workers would draw no protection from the ETS if the company employs 99 employees or fewer. Id. at 15. It further ordered the agency to “take no steps to implement or enforce” the ETS until further court order.

Fifth Circuit Issues Temporary Stay on OSHA ETS – What Does It Really Mean?

On November 6, 2021, the Fifth Circuit issued a temporary injunction on OSHA’s ETS for employers with 100 or more employees. The Fifth Circuit’s Order is brief citing “grave statutory and constitutional issues” with the ETS. The Court ordered the government to respond to the motion for a permanent injunction by 5:00 p.m. today, November 8, 2021. The petitioners have until tomorrow, November 9, 2021, at 5:00 p.m. to provide a reply to the government’s response.

OSHA COVID-19 Vaccination and Testing ETS: Overview and Summary

On November 4, 2021, OSHA issued its 490-page document setting out its Emergency Temporary Standard for COVID-19 Vaccination and Testing, as published in the Federal Register at 86 Fed. Reg. 61402 (Nov. 5, 2021).  The ETS requires covered employers to develop, implement, and enforce a mandatory vaccination policy by December 5, 2021, with all covered employees vaccinated by no later than January 4, 2022.  Alternatively, the ETS permits covered employers to instead adopt a policy requiring employees to either get vaccinated or elect, in lieu of vaccination, to wear a face covering at work and undergo weekly COVID-19 testing. The ETS imposes many additional safety protocols, recordkeeping, and disclosure requirements for covered employers and employees beyond mandatory vaccination and testing.

The New Federal COVID-19 Requirements for Employers With 100+ Employees Have Finally Arrived

OSHA issued the long-awaited ETS requiring employers with 100 or more employees to mandate that employees either get the COVID-19 vaccine or undergo weekly COVID-19 testing.  The Spencer Fane Labor and Employment Attorneys are analyzing the ETS and will be providing a more in-depth client alert shortly, in addition to hosting an educational WorkSmarts™ webinar on Wednesday, November 10 from 2:00pm-3:00pm CT.  In the meantime, here are a few highlights:

White House Guidance to Federal Contractors for Compliance With the Upcoming December 2021 Vaccine Mandate Deadline

The White House has released a new set of FAQs meant to provide flexibility to employers who are federal contractors and subcontractors in their efforts to satisfy the December 8, 2021 deadline for their employees to be fully vaccinated. These latest FAQs are intended to give some clarity while also grace to those contractors making good-faith efforts to reach compliance with new COVID-19 workplace safety protocols.

COVID-19 and Religious Accommodation Requests: New Guidance From the EEOC

The U.S. Equal Employment Opportunity Commission snuck in some pre-Halloween updates to its Technical Assistance Questions and Answers for COVID-19, Title VII, and other EEO laws.  In this latest round, published October 25, 2021, the agency finally gave us additional guidance on how employers should handle requests for religious-based exceptions to mandatory vaccination requirements, more commonly known as “religious accommodation requests.”

Federal Contractor Vaccination Mandate: FAQs

Information for Construction, Transportation, Aerospace/Defense, and Other Industries

Last Friday, October 15, 2021, marked the date on which federal agencies were required to begin incorporating a clause compelling compliance with federal COVID-19 workplace safety protocols, including a vaccination mandate for covered workers, into certain existing and new federal contracts, as detailed in guidance issued by the Safer Federal Workforce Task Force on September 24, 2021, pursuant to Executive Order 14042.

GC of NLRB Encourages Regional Offices to Pursue Alternative Make-Whole Remedies

On September 8, 2021, the Office of the General Counsel to the NLRB issued a memorandum to all Regional Directors encouraging them “to continue exploring new and alternative remedies” to ensure that the victims of unfair labor practices are made whole for the losses they suffer as a result of unlawful conduct. See Memorandum GC 21-06 (Sept. 8, 2021). This is an important development for employers to monitor because it strongly suggests that the NLRB plans to seek harsher remedies for unfair labor practice violations than it has done historically.

Sweeping New Federal COVID-19 Vaccination Mandates on the Horizon for American Employers and Employees

On September 9, 2021, the Biden Administration announced a new plan to use federal regulatory powers to reduce the number of unvaccinated Americans. The thrust of the administrative initiative involves “substantially increas[ing] the number of Americans covered by vaccination requirements,” primarily through mandates that “will become dominant in the workplace.” The Administration estimates that these new mandates will affect over 80 million Americans eligible to be vaccinated but who have not yet gotten their first COVID-19 shot.

OSHA Implements COVID-19 Emergency Temporary Standard for Healthcare and Updates COVID-19 Guidance for all Employers

On June 10, 2021, the Occupational Safety and Health Administration (“OSHA”) announced an action OSHA has not taken in 38 years: issuing an Emergency Temporary Standard (“ETS”).  This ETS aims to protect “healthcare and healthcare support service workers from occupational exposure to COVID-19 in settings where people with COVID-19 are reasonably expected to be present.”  The ETS does not go into effect until publication in the Federal Register, which has not yet occurred but appears imminent (OSHA has submitted the ETS to the Office of the Federal Register for publication and codification in 29 CFR 1910 Subpart U).  The text of the ETS, as submitted to the Office of the Federal Register, is available here.  OSHA also launched a website with resources regarding the ETS.

COVID-19 Update: EEOC Vaccine Incentive Programs

On May 28, 2021, the Equal Employment Opportunity Commission (“EEOC”) updated its COVID-19 related technical assistance document, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” which can be found here (“WYSK”). This document was first published on March 19, 2020, and was last updated, as we noted in this previous WorkSmarts update, on December 16, 2020. Although the recent update was published without consideration of updated guidance from CDC for fully vaccinated individuals issued on May 13, 2020, it still contains valuable guidance for employers with respect to vaccines in the workplace.

To Mask or not to Mask – Questions in Light of new CDC Guidance

On May 13, 2021, the Centers for Disease Control and Prevention (CDC) made a surprising announcement: individuals who are fully vaccinated no longer need to wear masks or maintain social distance in most indoor spaces. Individuals are considered fully vaccinated two weeks after their second dose of the Pfizer or Moderna vaccine or two weeks after a single dose of the Johnson and Johnson vaccine.

DOL Withdraws FLSA Independent Contactor Rule

On May 5, 2021, the United States Department of Labor (“DOL”) withdrew the regulations (i.e. the “Independent Contractor Rule”) that were intended to clarify the standard for determining whether a worker qualifies as an independent contractor for FLSA purposes. See DOL Press Release, US Department of Labor to Withdraw Independent Contractor Rule (May 5, 2021); see also Independent Contractor Status Under the Fair Labor Standards Act: Withdrawal, 86 FR 24303 (Published: May 6, 2021). The withdrawal of the Independent Contactor Rule is effective as of May 6, 2021.

Taking a Shot at Avoiding Quarantine (and COVID-19): A Layered Approach

During the COVID-19 pandemic, it is important to stay up-to-date with the latest guidance from the CDC. On February 10, 2021, the CDC released new guidance for the general public regarding mask-wearing and quarantining for individuals who have received both doses of the COVID-19 vaccine. This new guidance is important for employers whose employees are working in-person and for employers in certain industries who may have fully-vaccinated employees.

‘American Rescue Plan’ Proposed to Provide Expanded COVID-19 Paid Leave and Unemployment Relief

On January 14, 2021, President-elect Biden announced the “American Rescue Plan,” which is the new administration’s first emergency coronavirus and stimulus proposal.  If passed, the plan will greatly expand the availability of paid leave and unemployment benefits to U.S. workers.  Indeed, the new administration maintains that the plan could provide emergency paid leave to an additional 106 million Americans.  To do so, the plan will impose significant new burdens on employers by, for example, closing certain loopholes that previously exempted large segments of employers from federal paid leave requirements.

COVID-19 Update: FFCRA Tax Credits Extended and Updated Guidance from the CDC

On Monday, December 21, the stimulus bill from Congress was released. The bill contains individual relief, as well as an extension of federal unemployment assistance benefits. The bill did not, however, contain an extension of the mandatory paid leave benefits provided under the Families First Coronavirus Response Act (“FFCRA”). The stimulus does contain an extension through the end of March, 2021 of the tax credits provided for under the FFCRA leave. As a result, the mandate for FFCRA leave will formally sunset on December 31, 2020, but employers who voluntarily provide leave under the original provisions of the law may be able to qualify for tax credits through the end of March, 2021.

Colorado’s Equal Pay for Equal Work Act Starts January 1, 2021

No Pay Discrimination for Substantially Similar Work, and New Job Posting Rules

On January 1, 2021, the Equal Pay for Equal Work Act (“EPEWA” or “the Act”) becomes effective in Colorado.  C.R.S. § 8-5-101 et seq.  The Act applies to virtually all employers in the state, regardless of size, and is intended to “close the pay gap” between men and women and “ensure that employees with similar job duties are paid the same wage rate regardless of sex,” which it defines broadly as “gender identity.”  The Act has two major parts: (1) Part 1 amends Colorado’s previous equal pay statute by broadening the prohibition against wage discrimination to include paying employees of different sexes less for “substantially similar work”; and (2) Part 2 provides for “transparency in pay and opportunities for promotion and advancement” by requiring employers to announce opportunities for promotion and to disclose wage and benefit information in all job postings.

What to Consider Before Implementing a Mandatory Vaccine Policy

The first COVID-19 vaccines have been released, with more to come in the near future. This landmark development raises important questions – can employers require their employees to get the COVID-19 vaccine as a term and condition of continued employment when it becomes available to them? And if an employer implements such a mandate, would it be lawful?

DOL Proposes New Rule to Better Define Independent Contractor Status

On September 22, 2020, the Department of Labor (“DOL”) issued proposed regulations that are intended to clarify the standard for determining whether a worker qualifies as an independent contractor for Fair Labor Standards Act (“FLSA”) purposes. See RIN 1235-AA34 (Independent Contractor Status under the Fair Labor Standards Act).

Colorado’s Paid Sick Leave Law

On July 14, 2020, Governor Jared Polis signed the “Healthy Families and Workplaces Act” (“HFWA”). Last month, we discussed the emergency COVID-19 provisions here. The emergency provisions are effective from July 15 to December 31, 2020. In this Part 2, we will discuss the paid sick leave provisions of HFWA that go into effect January 1, 2021.

DOL-WHD Releases FLSA, FMLA, and FFCRA Guidance Relating to COVID-19 and Work From Home Issues

During the week of July 20th, the Wage and Hour Division of the Department of Labor published new guidance for employers, focusing on compliance under the Fair Labor Standards Act (“FLSA”) and the Family and Medical Leave Act (“FMLA”) in the midst of the pandemic (See FLSA Q&A, FMLA Q&A, and FFCRA Q&A).

Colorado Passes Paid Sick Leave and Whistleblower Laws

On July 14, 2020, Governor Jared Polis signed the “Healthy Families and Workplaces Act” (“HFWA”).  Several provisions of this law are effective immediately (July 15, 2020), and require paid sick leave specifically for COVID-19 related issues.  Starting January 1, 2021, the HFWA will require that most employers provide their employees with up to 48 hours of paid sick leave per year.  This article is Part 1 of a two-part series, and focuses on the immediately effective laws relating to COVID-19. We will discuss the details of the general paid sick leave in Part 2.  Governor Polis also recently signed the Public Health Emergency Whistleblower Law (“PHEW”), effective July 11, 2020, which we will discuss briefly below.

Supreme Court Expands “Ministerial Exception” to Employment Discrimination Laws

On July 8, 2020, the Supreme Court expanded the scope of the “ministerial exception” to employment discrimination statutes. This exception is grounded in the First Amendment’s protections for religious institutions. In Our Lady of Guadalupe School v. Morrissey-Berru, the Court considered two cases involving elementary school teachers in Catholic schools who alleged that they were terminated in violation of federal employment discrimination law. Seven justices joined the majority opinion of the Court, holding that “When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow.” A link to the full decision of the Court can be found here.

SCOTUS Holds That Title VII Prohibits Discrimination Because of Sexual Orientation and/or Transgender Status

On June 15, 2020, the Supreme Court held that Title VII’s prohibition of “sex” discrimination also prohibits discrimination because of sexual orientation and transgender status. See Bostock v. Clayton County, Case No. 17-1618 (Slip Opinion). Therefore, “an employer who fires an individual merely for being gay or transgender violates Title VII.” Id. at pg. 1.

OSHA Refines Stance on COVID-19 Recordkeeping and Enforcement

On May 19, OSHA issued two enforcement memos regarding COVID-19.  The first of these memos revised OSHA’s requirements for employers as they determine whether individual cases of COVID-19 are work-related.  The second enforcement memorandum OSHA issued on May 19 revised OSHA’s policy for handling COVID-19-related complaints, referrals, and severe illness reports.  These two memos are summarized below.

Summary of Recent Agency Activity on Employment-Related COVID-19 Issues

Last week (April 4-12), several federal agencies issued updated guidance for employers on issues relating to COVID-19, including:

EEOC Updates COVID-19 Guidance

On April 9, the Equal Employment Opportunity Commission (“EEOC”) updated its guidance for employers entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” found here. Previously issued guidance explained that employers may, under pandemic conditions, ask employees about whether they are experiencing certain symptoms. The EEOC further stated that employers may also implement other measures to protect against spread of COVID-19 due to the novel coronavirus in the workplace. The guidance further noted that if employers do receive health information from employees, the information must be maintained confidentially, and consistent with other requirements under the Americans with Disabilities Act (the “ADA”).

COVID-19 Emergency Paid Sick Leave and Family Medical Leave: Updated Department of Labor FAQs

The Department of Labor (the “DOL”) issued FAQs regarding the Families First Coronavirus Response Act (the “FFCRA”) and has updated its FAQs multiple times by adding questions to the same document.  The FAQs can be found here. The most recent update occurred on March 28, 2020 and addressed many of employers’ questions that were initially left unanswered in the FFCRA and the initial FAQs.

COVID-19 Emergency Paid Sick Leave and Family Medical Leave: An updated notice and more from Department of Labor

As of Friday, March 27, the Department of Labor has issued an updated notice on its website, as well as responses to additional questions about the Families First Coronavirus Response Act (the “Act”). The new notice can be found here: FFCRA Poster.[1]  The updated notice clarifies that employees may have a total of up to 12 weeks of leave, paid at 2/3 of pay, to care for a child whose school or place of care is closed (or child care provider is unavailable) due to COVID-19 related reasons.

COVID-19 Emergency Paid Sick Leave and Family Medical Leave: Updates from Department of Labor

On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act (the “Act”). We outlined the key provisions of this law here. Since the publication of our original article, the Department of Labor Wage and Hour Division, which will enforce the new law, has published updated guidance about the new law. The Department has now clarified that the law will officially take effect on April 1, 2020, and applies to leave taken between April 1, 2020 and December 31, 2020.  The new law also requires that employers post notice regarding the new law, and a model notice has been published. It can be found here.

COVID-19 Emergency Paid Sick Leave and Family Medical Leave: Key Provisions

On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act, which goes into effect no later than April 2, 2020.  The new law imposes sweeping new emergency paid leave and expanded family medical leave requirements for employers nationwide.  Here is a summary of the key provisions affecting employers:

Coronavirus is a Recordable Illness According to OSHA

According to recent OSHA guidance, COVID-19 (i.e., the coronavirus) is subject to the agency’s Injury and Illness Recordkeeping and Reporting Requirements at 29 CFR 1904.  This means that employers who are subject to the OSHA recordkeeping and reporting rules must include and log employee illnesses related to the coronavirus when an employee is infected on the job.  So while the common cold and Flu are exempt from work-related exposures, the coronavirus is not.

NLRB Issues Final Joint Employer Rule

The National Labor Relations Board (“NLRB”) has updated its joint employment rule (the “Final Rule”).  The Final Rule, which will be published in the February 26, 2020 Federal Register effectively overturns the joint-employer standard established in the 2015 Browning-Ferris Industries decision, which expanded the definition of joint employer based on indirect or limited control.  NLRB Chairman John Ring explained that “[t]his [F]inal [R]ule gives our joint-employer standard the clarity, stability, and predictability that is essential to any successful labor-management relationship and vital to our national economy.”    

Fluctuating Laws: DOL Announces Proposed Fluctuating Workweek Regulations

On November 5, 2019, the Department of Labor (“DOL”) published a proposal to revise regulations governing the fluctuating workweek method of calculating overtime pay under the Fair Labor Standards Act (“FLSA”). This method of calculating overtime may apply if certain conditions are met. These conditions include that the employees paid under this method work fluctuating hours, and they and their employers agree that the employees are paid fixed salary for all hours worked plus an overtime premium. There are very specific requirements for utilizing this method, but utilizing the method in a compliant manner can be complicated due to the need to calculate the regular rate of pay for every week in which the employee works more than 40 hours. Additionally, some state laws prohibit use of this method.

Agency Developments at the Department of Labor: The Fair Labor Standards Act

In the summer of 2019, the Department of Labor (“DOL”) made headlines when Secretary of Labor Alexander Acosta resigned. President Trump then nominated Eugene Scalia for the position, and Mr. Scalia was sworn in as Secretary of Labor on September 30. In recent months, the Senate also confirmed Cheryl Stanton as Administrator of the Wage and Hour Division.

DOL Releases Final New Overtime Rules – Effective January 1, 2020

On September 24, 2019, the Department of Labor (“DOL”) issued the final rule (the “New OT Rules”) that updates and revises the regulations which govern the exemptions from minimum wage and overtime pay requirements under the Fair Labor Standards Act (“FLSA”). Employers should carefully review the New OT Rules and the explanatory commentary. See Final Rule Announcement. The New OT Rules are set to become effective on January 1, 2020.

Implementing Individual Arbitration Agreements Does Not Violate NLRA, Even If Done After Collective Action is Filed

As previously discussed on Spencer Fane Human Resource Solutions, an employer can lawfully require its employees to sign individual arbitration agreements with class action waivers as a term and condition of their employment. See Employee Class Action Waivers Held Enforceable (May 22, 2018).  However, even if individual arbitration agreements with class action waivers are not, as a general rule, unlawful under the National Labor Relations Act (“NLRA”), can an employer require its employees to sign such an agreement after a collective or class action lawsuit has already been filed against it? The National Labor Relations Board (the “Board”) recently said yes in Cordúa Restaurants, Inc., Case 16-CA-160901 (August 14, 2019).

SCOTUS Holds that Title VII’s Charge-Filing Procedures Are Subject to Waiver

On June 3, 2019, the Supreme Court held that filing a charge of discrimination is not a “jurisdictional” prerequisite to filing suit under Title VII of the Civil Rights Act of 1964. See Fort Bend County v. Davis, Slip Op. No. 18-525 (June 3, 2019).  Although this case deals with what sounds like an obscure legal issue, it is of great practical importance to employers. In short, it means that employers defending against claims of discrimination under Title VII must diligently assert all procedural defenses they may have as early as possible. Otherwise, a failure to assert a defense may allow the plaintiff-employee’s claim to go forward, even if the employee has not technically complied with Title VII’s mandatory charge-filing procedures.

DOL Publishes Proposal Interpreting Joint Employer Status

On April 1, 2019, the Department of Labor (“DOL”) published its third proposal in 30 days to revise regulations interpreting the Fair Labor Standards Act (“FLSA”). The April 1 proposed rule would revise and clarify the test for when multiple employers (known as “joint employment”) can be held responsible for wages under the FLSA. The notice and full text of the rule can be found here.

DOL Publishes Proposals Interpreting “Regular Rate of Pay” in Overtime Regulations

Under the Fair Labor Standards Act (FLSA), employers must generally pay non-exempt employees overtime at a rate of one and one half times the “regular rate” of pay when they work more than forty hours in a workweek. Overtime cannot be properly calculated unless the employer knows what to include in the regular rate.  As benefits, bonuses, reimbursements and other elements of compensation have evolved, greater ambiguity has developed in determining what is included in and excluded from the regular rate.  On March 29, 2019, the Department of Labor (“DOL”) published a proposal (found here) to clarify and update several regulations that interpret the regular rate of pay requirement.

DOL Publishes Proposal on New White-Collar Exemption Regulations

On March 7, 2019, the Department of Labor (“DOL”) published a long-awaited proposal for revising the regulations relating to the white-collar exemptions from overtime and minimum wage under the Fair Labor Standards Act (“FLSA”). In the Notice of Proposed Rulemaking (“NPRM”), DOL has proposed increasing the threshold salary amount for certain white-collar exemptions from its current $455 per week (or $23,660 per year) to $679 per week, or ($35,308 per year). In 2015, DOL had proposed increasing this threshold to over $47,000 per year ($913 per week). As we reported here, that proposal was blocked by a federal court in Texas in late 2016.

FAA Not Applicable to Contracts with Transportation Workers, Even If They Are Independent Contractors

In New Prime, Inc. v. Oliveira, the United States Supreme Court held that the Federal Arbitration Act (“FAA”) does not apply to contracts with independent contractors in the transportation industry. This decision is very important for transportation companies because, to the extent a contract with any transportation worker contains a mandatory arbitration provision, the arbitration provision is not covered by, and is no longer enforceable under, the FAA.

Missouri Minimum Wage Set to Increase Starting January 1, 2019

On November 6, 2018, Missouri voters overwhelmingly voted in favor of amending the Missouri Minimum Wage Law (“MMWL”) to increase the state-wide minimum wage. Therefore, effective January 1, 2019, the Missouri minimum wage rate will increase to $8.60 per hour and will keep increasing each successive year until 2023 when the increases will stop at the target minimum wage rate of $12.00 per hour. Employers must begin the process of budgeting for and implementing these changes ahead of the effective date of the first increase. Employers should also be aware of the non-wage-rate related changes that the law implements. However, the wage increases do not apply to “public employers.”

Missouri’s Medical Marijuana Amendment Creates New Issues for Missouri Employers

On November 6, 2018, Missouri’s voters approved a medical marijuana ballot initiative, Amendment 2, while rejecting two competing medical marijuana initiatives on the ballot.  This constitutional amendment empowers doctors to authorize patients to buy medical marijuana for the treatment of a variety of conditions. It likewise provides that dispensaries may sell marijuana for medicinal purposes.  Amendment 2 does not cover recreational use of marijuana, which is currently allowed in nine states.  Missouri is the 31st state to legalize medical marijuana. While Amendment 2 authorizes use of marijuana for medicinal purposes, this is not a “free pass” for employees.  Amendment 2 does not allow employees to use marijuana while working, on the employer’s premises, or to work while impaired by marijuana use that occurred prior to the employee’s work shift.  With that said, the passage of Amendment 2 will likely create multiple issues of varying complexity for Missouri’s employers for years to come, including:

Corporate Entity Formation Is Not Dispositive on “Employee” Status Under the FLSA

The Tenth Circuit Court of Appeals recently provided an important reminder to employers about the pitfalls that can occur when attempting to determine whether workers are employees or independent contractors. The court held that individual workers who personally perform janitorial cleaning services could be found to be employees under the Fair Labor Standards Act (“FLSA”), even if those workers have formed corporate entities and entered into franchise agreements with a franchisor See Acosta v. Jani-King of Okla., Inc., Case No. 17-6179, 2018 WL 4762748 (10th Cir. Oct. 3, 2018).  The holding in Jani-King  emphasizes the principle that forms and labels are not the deciding factor in determining whether a worker is considered an “employee” for FLSA purposes. Under current law, administrative agencies and/or the courts will make a determination as to “employee” status under the FLSA by examining the totality of the circumstances in light of the factors stated in the “economic realities test.”

Fair Credit Reporting Act – New Summary of Consumer Rights Forms Now Required

All entities and individuals required to provide “consumers” with a notice of rights pursuant to Fair Credit Reporting Act (“FCRA”) section 609 are now required to use the updated summary of rights forms authored by the Consumer Financial Protection Bureau (“CFPB”). See Interim Final Rule (83 FR 47027). Companies that use background check reports for employment purposes are subject to this rule.

Changes to Missouri’s Public Sector Labor Law Impacts Employers, Unions, and Employees

A new law, making it easier for Missouri public employees to opt out of both union membership and paycheck deductions funding political advocacy work, goes into effect on August 28, 2018. The new law, a victory for public sector employers, effectively enacts “right-to-work” protections for public sector employers, despite the fact that voters rejected right-to-work generally for the state of Missouri (see Missouri Right to Work is Overwhelmingly Rejected by Voters, Spencer Fane HR Solutions August 15, 2018). Therefore, public sector employers should review the new law and determine what steps need to be taken in order to comply with it upon the forthcoming effective date. (See Full Text of Law Here).

Missouri Right to Work is Overwhelmingly Rejected by Voters

By a greater than two to one margin, Missouri voters rejected the Right to Work Act passed early in the legislative session.  The law was supported and signed by former Missouri Governor Greitens.  With strong local and national union backing and a ton of dollars, the unions led the effort first to get the issue on the ballot with more than 300,000 petition signatures and then to defeat the measure soundly at the polls. 

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”). 

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.

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?

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.

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.

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.

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.

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.”