Increased Union Activity in the COVID-19 Era

With the COVID-19 pandemic continuing to dominate headlines and potential surges expected this fall and winter, safety issues are at the forefront of many employees’ minds. These issues encompass an array of subjects, including social distancing, hand-washing protocols, time off to care for ill family members or school-age children who are distance learning, layoffs/job security, continuation of health care benefits for furloughed employees, etc. Each of these issues presents a potential wedge that a union can attempt to drive between a nonunion employer and its employees. This danger is further exacerbated by the fact that most regional offices of the National Labor Relations Board are continuing to conduct elections by mail ballot, which generally tends to favor the union side.

So, what can a nonunion employer do to mitigate this risk? First and foremost, employers should understand that media coverage shapes the perception of employees concerning the state of the pandemic and the protocols that are effective in combating it. Continue Reading

DOL Issues Guidance on Employers’ Obligation to Pay Nonexempt Employees for Time Worked Remotely

Employers and employees alike have had much confusion around proper compensation when nonexempt employees work remotely – particularly in today’s time when many employees are teleworking and working crazy schedules due to COVID-19.  Truth is, in today’s world of remote working (which is new for many of us), employers are dealing with various issues relating to nonexempt employees working off the clock, working unapproved overtime and/or performing unnecessary work while on the clock.

Fortunately, the U.S. Department of Labor shed some light on these issues.  Indeed, it advised last week that employers must pay nonexempt employees for all hours worked remotely if they know about it or have reason to believe that the work was performed. Continue Reading

Exploring Potential Liability under Colorado’s Lawful Off-Duty Activity Statute in 2020

Today’s political and social climate has brought significant changes to the workplace. Employers are adapting to a remote workforce, COVID-19 regulations, political protests and the upcoming election. Regardless of whether political speech and activity in your workplace have already caused noticeable workforce fragmentation or provided challenges to your human resources and management teams, it is important that employers are aware of laws impacting employees’ ability to express their views in the workplace. This includes, as an example, the Colorado Lawful Off-Duty Activity Statute.

Like many other states, Colorado is a state that prevents an employer from terminating an employee for lawful off-duty activity, which could include political affiliation and activism. As a result, prudent employers should carefully analyze their policies and protocols related to discipline and potential employment terminations in this socially and politically active environment. Continue Reading

Reminder: Beginning Jan. 1, Colorado Employers Have Strict Requirements Under the Equal Pay for Equal Work Act

As we reported in our blog post in June 2019, last year, Colorado started the process of tightening its protections for pay equity. The state’s Equal Pay for Equal Work Act (the Act), which was signed into law last year, takes effect on Jan. 1, 2021, and results in requirements that employers should immediately consider.


The Act applies to all Colorado employers and contains provisions regarding pay equity. Under the Act, an employer may not “pay an employee of one sex a wage rate less than the rate paid to an employee of a different sex for substantially similar work.” Employers are also prohibited from requesting or using an applicant’s compensation history to determine salary. And employers are prohibited from retaliating against employees who share or refuse to share their compensation. Additionally, the Act requires employers to notify all employees of opportunities for promotions at the same time. Violation of the Act may result in significant fines, back pay and liquidated damages. Continue Reading

Summary of National Interest Exceptions to Presidential Proclamation 10052 for H-1B and L-1 Visa Applicants

On June 22, President Trump took aggressive action impacting a wide group of temporary foreign national workers. In Presidential Proclamation 10052, President Trump suspended the entry of certain temporary workers who are outside the United States and not in possession of a valid visa from seeking admission to the United States through Dec. 31. As we wrote previously, the June 22 proclamation applies to H-1B (professionals), H-2B (seasonal or peak-load workers), L (intracompany transferees) and J-1 (cultural exchange visitors) visas. It does not impact other work visas, which include the E, H-1B1, H-3, O, P and TN categories, but it does apply to family members of affected workers. The administration claims this action will protect more than 500,000 jobs for U.S. workers.

On June 29, the administration amended the June 22 proclamation to close a perceived loophole that would have allowed individuals with any type of valid visa (such as a visitor visa) to secure and use a new H-1B, H-2B, L-1 or J-1 visa (see here). The proclamation now exempts only those H-1B, H-2B, L-1 or J-1 visa holders who possessed a valid visa in the same category as of the effective date of the proclamation. Continue Reading

Something Is Rotten in the State of California? Ride Share Misclassification Ruling Is Merely Act I

“To be or not to be” are the opening words of a soliloquy by Prince Hamlet. With that, I have exhausted what I remember about Shakespearean plays without consulting Wikipedia. Having consulted Wikipedia, I can confirm that this soliloquy occurs in Hamlet, Act III, Scene 1.

A lot happens in Act III and beyond, and if you stopped reading Hamlet after Act I, you’d miss most of the action, including assorted plotting, scheming and mayhem.

Last week in California, a different kind of mayhem began in a major case involving alleged independent contractor misclassification. In California v. Uber, a state superior court judge granted a preliminary injunction, requiring ride-sharing app companies to reclassify California drivers as employees. But this order might not be the poisoned blade it seems to be. Either the ruling is a substantial blow, or it’s much ado about nothing. For now, it’s too early to tell. We’re still in Act I. Like in Hamlet, the real action will be in the later acts. Continue Reading

EEOC Releases Technical Assistance Documents Regarding Opioid Addiction and the ADA

On August 5, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) released two technical assistance documents addressing opioid addiction and employment. The EEOC defines opioids to include prescription drugs such as codeine, morphine, oxycodone, hydrocodone, meperidine, buprenorphine and methadone, as well as illegal drugs like heroin.

Employee Guidance

The first document is guidance for employees and explains that the Americans with Disabilities Act (ADA) may apply to employees “who are not engaged in the current illegal use of drugs and are qualified for employment.” The employee guidance clarifies that employees who are using opioids legally, are in treatment for opioid addiction or have recovered from their addiction are protected from discrimination and may be entitled to a reasonable accommodation under the ADA. If an employee is not disqualified by a federal law and his or her opioid use is legal (for instance, if taken to treat a medical condition), an employer cannot automatically disqualify an employee from a job because of the opioid use without consideration of whether there is a means for the employee to safely and effectively perform the job. In addition, opioid addiction (or opioid use disorder) is itself a diagnosable medical condition that can be an ADA-covered disability. Continue Reading

New York Southern District Vacates Several Provisions of the DOL’s Final Rule on the FFCRA

On August 3, 2020, the Southern District of New York issued a decision vacating certain provisions of the Department of Labor’s (DOL) Final Rule on the Families First Coronavirus Response Act (FFCRA). This ruling will be difficult and problematic for many employers and will create substantial uncertainty in the workplace.

The FFCRA, which was enacted in March, obligates employers with fewer than 500 employees to provide both emergency family leave and sick leave to certain employees who are unable to work because of the COVID-19 pandemic. On April 1, 2020, only weeks after the statute was passed, the DOL issued a Final Rule implementing the FFCRA, which the state of New York soon challenged in federal district court. That Court has now stricken four provisions of the DOL’s Final Rule. These provisions include a requirement that work be available to an employee to receive benefits, the definition of a “healthcare provider” exempt from some requirements, a requirement that the employer consent to the taking of intermittent leave and a requirement that documentation be provided prior to taking leave. The remainder of the Final Rule will continue to operate in the absence of these provisions. Continue Reading

NLRB: Being Abusive Is Not Protected Union Activity

Under the National Labor Relations Act (NLRA), a union member cannot be disciplined for forming or joining unions, bargaining collectively, or engaging in other activities for the purpose of collective bargaining, such as striking. But this protection does not immunize a union member from discipline for any type of inappropriate conduct while engaging in protected activity. The NLRB previously allowed union members significant leeway to engage in inappropriate conduct while exercising their protected rights, concluding that the NLRA’s protections “would be meaningless were we not to take into account the realities of industrial life and the fact that disputes over wages, hours, and working conditions are among the disputes most likely to engender ill feelings and strong responses.”

In line with this approach of affording leeway, various approaches were taken to determine whether an employee could be disciplined for certain conduct. These approaches varied depending on the circumstances in which the conduct occurred, in ascending order of leeway: (1) workplace discussions with management; (2) social media posts and coworker discussions; and (3) the picket line. Continue Reading

Second Circuit Says No California Anti-SLAPP Motions in Federal Court

The Second Circuit Court of Appeals has split with the Ninth Circuit Court of Appeals and concluded that California’s statute to avoid strategic lawsuits against public participation (anti-SLAPP) does not apply in federal court. The initial impact of the decision is limited, as it would not have binding effect on California district courts.  This decision could result in the Ninth Circuit reversing its position, however, which would then become a significant consideration for employers deciding whether to remove a claim to federal court, as discrimination and retaliation claims can be the subject of anti-SLAPP motions.

Serving as somewhat of a hybrid motion to dismiss/motion for summary judgment, California’s anti-SLAPP statute provides defendants a procedural device to obtain early dismissal of a plaintiff’s claim that targets conduct implicating the defendant’s constitutional rights of speech and petition. If the defendant proves that the complaint targets such “protected” conduct, then the plaintiff must make a showing sufficient to defeat a motion to dismiss or a motion for summary judgment. If the plaintiff cannot, the claim is dismissed. Continue Reading