Colorado Employment Law Blog

Court Invalidates NLRB's "Ambush Election" Rule

A federal district court judge invalidated the National Labor Relations Board's (NLRB's) controversial "ambush election" rule yesterday, ruling that the Board had lacked a three-member quorum needed to pass the rule last December. The ruling followed a failed Congressional attempt to halt the rule, and came just two weeks after the rule became effective on April 30th.  For more information, see the article written by my colleagues Brian Mumaugh and Brad Williams.

Good Documentation -- a recipe for success

By Mark Wiletsky

As a follow-up to a recent post, here is an article with tips for documenting employee performance issues.

Before terminating an employee, even in an at-will state such as Colorado, employers are well-advised to have good documentation in hand.  A solid “paper trail” documenting legitimate performance or behavioral issues is often your best weapon to prevent or quickly resolve opportunistic claims from poor performers and disgruntled employees.  Although documenting problems is not required by law, jurors expect to such evidence when faced with a claim that the employee was terminated for an unlawful reason.  There is no “one-size-fits-all” approach to documenting performance problems, but following a recipe will help to ensure that your documentation contains the key ingredients to ward off a claim. 

Good Documentation Dooms FMLA Claim

by Mark Wiletsky

A recent case issued by the Tenth Circuit (which covers Colorado) provides a good reminder about the importance of good documentation, and following your employment policies.  In Peterson v. Exide Technologies, the Tenth Circuit affirmed summary judgment in favor of Exide Technologies, dismissing Peterson's Family and Medical Leave Act (FMLA) and wrongful discharge claims as a matter of law.  Peterson was involved in a forklift accident, in which he was injured.  After the accident, he was placed on FMLA leave for 10 days.  After investigating the accident, the employer determined that Peterson had violated its safety policies.  Therefore, Exide terminated Peterson four days after the accident, while Peterson was on FMLA leave.

NLRB Notice-Posting Requirement Indefinitely Postponed

by Brian M. Mumaugh and Bradford J. Williams

The National Labor Relations Board (NLRB) has agreed to postpone its notice-posting rule—requiring employees to post notices of employees’ rights under the National Labor Relations Act (NLRA) —in light of conflicting court decisions.  On its website today, the NLRB announced: “In view of the DC Circuit's order, and in light of the strong interest in the uniform implementation and administration of agency rules, regional offices will not implement the rule pending the resolution of the issues before the court.”  The postponement is due in large part to an emergency injunction granted by the U.S. Court of Appeals for the District of Columbia Circuit in the underlying case, National Association of Manufacturers v. NLRB, No.11-1629. The D.C. Circuit Court’s April 17, 2012, order indefinitely enjoins enforcement of the notice-posting rule pending resolution of an expedited appeal.   Therefore, as of April 17th, employers are not required to post the notice of employee rights by the original April 30, 2012, deadline. 

Court Strikes Down NLRB Notice-Posting Requirement, Leaves Employers Hanging

By Brian M. Mumaugh and Bradford J. Williams

    The U.S. District Court for the District of South Carolina just became the second federal district court to weigh in on the legality of a National Labor Relations Board (NLRB) rule requiring most private employers to post a notice informing employees of their rights under the National Labor Relations Act (NLRA). In his April 13, 2012, decision, Judge David C. Norton held that the notice-posting rule exceeded the NLRB’s authority in violation of administrative law. The decision leaves employers hanging regarding their obligations in advance of the April 30, 2012, notice-posting deadline.

    In August 2011, the NLRB issued a final administrative rule requiring all private employers covered by the Act to post 11-by-17 inch posters “in conspicuous places” advising employees of their rights under the NLRA. These rights include the right to form, join, or assist unions; to negotiate with employers through unions; to bargain collectively through representatives of employees’ own choosing; and to strike and picket. The rule was stridently opposed by business groups which felt that it violated employers’ First Amendment rights, and mandated the posting of an excessively pro-union message. The final rule required employers who customarily communicate with employees regarding personnel matters using an intranet or internet site to post the notice prominently on that site.

Maryland Protects Employees' Social Media

By Mark Wiletsky

According to various blogs, including a post by the ACLU, Maryland has become the first state to ban employers from requiring employees or applicants to provide access to their otherwise protected social media accounts.  I have not yet seen the text of the bill that Maryland passed, but the new law is not entirely surprising in light of the furor that recently erupted--which gained national media attention--based on reports of a few employers demanding access to applicants' or employees' Facebook and other social media accounts. Whether Maryland's law protecting employees' social media accounts is the first of many state laws, or even a new federal law, remains to be seen.  Regardless, this is yet another indication to employers to be cautious about social media.  Employees' use of and access to social media--both inside and away from the workplace--raises novel issues that courts and legislatures will have to address.  Until more definitive guidance is provided, be aware that your practices may need to modified and reviewed regularly to address this evolving area of the law. 

Defense of Discrimination Claims Will Continue to Rise

By Steven M. Gutierrez

The recently published Enforcement & Litigation Statistics from the EEOC (http://eeoc.gov/eeoc/statistics/enforcement/charges.cfm) reveal an increase in the number of claims filed by individuals who claim discrimination.  The statistics support the notion that employers will face increased claims of alleged discrimination.  In addition, the statistics, coupled with the announcement of the new four-year strategic plan and its emphasis on an increase in the number of systemic discrimination claims litigated by the EEOC, should put all employers on notice that dealing with claims of discrimination is not going to be easy.  Even more telling of the EEOC’s aggressive efforts to grow systemic litigation is the manner in which investigations are likely to be more complicated in the future. 

In a recent case before the Tenth Circuit Court of Appeals, EEOC v. Burlington N. Santa Fe Ry. Co., 10th Cir., No. 11-1121, 2/27/12, the EEOC attempted to seek a broad based category of nationwide information related to its investigation into the claims of two men who applied for a position with the respondent.  When Burlington Northern objected to the scope of the subpoena, the EEOC sought to compel production of the nationwide recordkeeping data.  The United States District Court for the District of Colorado declined to enforce the administrative subpoena and the EEOC appealed arguing that the District Court “applied erroneous legal principles and ignored record evidence” in backing Burlington Northern’s objection to the subpoena in the case brought under the Americans with Disabilities Act.

EEOC Issues Final Rule On Disparate Impact

By Mark Wiletsky

Last week, the Equal Employment Opportunity Commission (EEOC) issued its final rule governing disparate impact claims arising under the Age Discrimination in Employment Act of 1967 (ADEA).  A disparate impact occurs when a policy or practice that is facially neutral has a disparate, or significantly greater, impact on older workers than younger ones.  The EEOC's final age bias rule addresses the “reasonable factors other than age” defense, or RFOA, under the statute.  According to the EEOC, the rule “makes the existing regulation consistent with the Supreme Court’s holding that the defense to an ADEA disparate impact claim is RFOA [reasonable factors other than age], and not business necessity[.]”  For more information, see the post by my colleague, Scott Randolph.

Discharge Checklist

By Mark Wiletsky    

Here's a great checklist from Nicole Snyder in our Boise office for things to think about before discharging an employee; you can also get to the checklist from this link: http://www.idahoemploymentlawblog.com/2012/03/a-checklist-to-use-before-discharging-an-employee.html.  It's a great list of items to consider before you discharge an employee, regardless of whether your employees are in Idaho or another state.  As with any checklist, this is not meant to be all-encompassing; you may be in state with special rules, or in an industry subject to regulations that impact a discharge decision.  Still, this is a great resource. 

Furor Over Facebook Continues

By Mark Wiletsky    

Following up on my post last week, the flap over employers asking applicants to turn over their passwords to social media accounts, such as Facebook, rages on.  Two senators--Sens. Richard Blumenthal (D-Conn.) and Charles Schumer (D-N.Y.)--on March 25 asked the Department of Justice and the EEOC to investigate this practice (http://blumenthal.senate.gov/newsroom/press/release/blumenthal-schumer-employer-demands-for-facebook-and-email-passwords-as-precondition-for-job-interviews-may-be-a-violation-of-federal-law-senators-ask-feds-to-investigate).  Facebook joined the fray by warning employers about this practice, and of course the ACLU has raised concerns as well (http://www.cnn.com/2012/03/23/tech/social-media/facebook-employers/index.html?hpt=hp_t3).  Is this issue being overblown?  Other than media reports about a couple of public entities, it is unclear how many employers are demanding applicants turn over passwords to social media accounts as a condition of employment (or consideration for employment).  Still, the heightened media attention is a good reminder for employers to review their hiring practices and their social media policies.  If you have not yet read the NLRB's January 25, 2012 Operations Management Memo (http://www.nlrb.gov/news/acting-general-counsel-issues-second-social-media-report), I recommend doing so.  Even though I disagree with certain aspects of the Memo, it provides some good examples of things to avoid in both social media policies and discipline/termination situations involving social media--for Union and non-Union work environments.