Monthly Archives: December 2014

December 23, 2014

National Labor Relations Board continues down a controversial path!

By  Steven M. Gutierrez         Gutierrez.Steven

In recent years, the National Labor Relations Board (“NLRB”) has issued some notable decisions that impact both union and non-union employers nationwide.  In the past month, two important pronouncements have been made by the NLRB.  Both are controversial; however, anyone that has been following the last several years’ NLRB activity, neither was unexpected. 

The first pronouncement is found in a holding of the NLRB issued on December 11, 2014 in Purple Communications, Inc., 361 NLRB No. 126.  In this matter, Purple Communication’s electronic communications policy, which prohibited employees of Purple Communications from using the company’s email and communication systems in activities on behalf of organizations that had no professional or business affiliation with the company, was found unlawful.  In holding that the policy was unlawful, the NLRB overruled Register Guard.  Under Register Guard, employers could prohibit employees from using the employer’s email system, provided that the ban was not applied discriminatorily.  Under the new Purple Communications standard, there is now a presumption that employees who have been given access to the employer’s communication system are entitled to use that system to engage in concerted protected activity during their non-working time.  Employers who can show special circumstances can justify a ban on this kind of communication, but the burden will be high and the ban must be supported by evidence that there is a specific business interest at issue. 

The second pronouncement comes from the issuance of a final rule, on December 12, 2014, when the NLRB amended representation election procedures.  The new rules become effective on April 14, 2015.  Pursuant to the final rule, the time period between filing of a union election petition and the date of the election is reduced and expedited.  What normally would have taken six to seven weeks, will now be accomplished in 10-21 days.  Further, issues related to voter eligibility and bargaining unit inclusion are resolved after the election.  Notably, an employer will now be required to submit a “Statement of Position” prior to the pre-election hearing, and will be found to waive arguments concerning the election that are not raised in the Statement of Position. This new rule will most certainly make it easier for unions to organize and reduce the time an employer previously had to communicate with its employees in advance of a union petition requesting a vote.

Based upon these two developments and others in the past year, you can be virtually certain that the NLRB will continue with its controversial ways in the coming year.  It is clear to this author, the NLRB would like to make it easy for unions to assert greater influence and stem the tide of the continued decline in membership.


December 15, 2014

Are Your Employee Handbooks and Policies Up-to-Date?

By Mark Wiletsky

As 2014 comes to a close, employers should consider reviewing and, if necessary, updating handbooks, policies, and employment agreements.  Organizations sometimes devote significant resources to developing policies or handbooks, but if they are not regularly updated or revised, the policies and handbooks may not be particularly useful.  In fact, an outdated policy may end up causing confusion among employees and managers, or create issues for the organization if a dispute arises.  To avoid these issues, consider (among other things):

  • Changing your handbook to eliminate old or outdated policies, and ensure the current policies accurately reflect current practices;
  • Reminding employees about key policies, such as anti-discrimination/harassment and nondisclosure policies; and
  • Revising or updating nondisclosure, noncompetition, and/or nonsolicitation agreements.  In Colorado, continued employment is generally sufficient consideration for such agreements, but in other states or jurisdictions, that might not be the case, so tying an update to a year-end bonus, raise, or promotion may be a good way to ensure adequate consideration exists for new or revised agreements.

Rolling out new or updated policies in the first quarter of 2015 may be a good way to introduce new and existing employees to the changes or updates.  In addition, if you do not already do so, consider highlighting key policies, such as anti-discrimination and anti-harassment, or conducting an annual training on critical policies.  Doing so may limit potential claims, or at least put you in a better position to defend against a claim down the road.

December 12, 2014

Supreme Court Says No Pay For Security Screening Time

Supreme Court Says No Pay For Security Screening Time

By Brad Williams

Should employers pay employees for time spent in mandatory, post-shift security screenings designed to deter theft?  Not according to a recent Supreme Court decision.

On December 9, 2014, the Supreme Court unanimously held in Integrity Staffing Solutions, Inc. v. Busk, No. 13-433 (2014), that post-shift, anti-theft security screenings are not compensable work time under the Fair Labor Standards Act (FLSA).  The decision reversed a Ninth Circuit decision holding that workers in two warehouses were entitled to pay for periods spent waiting for, and being screened at, security checkpoints after their shifts had ended.  The workers claimed that they spent roughly twenty-five minutes per day in such screenings, which included removal of their wallets, keys, and belts.

Splitting from other courts to have considered the issue, the Ninth Circuit held that such time was compensable because the workers’ post-shift screening activities were necessary to their principal work activities, and were performed for the benefit of their employer.  However, the Ninth Circuit’s understanding of compensable work time under the FLSA echoed that in earlier judicial decisions that had been expressly overruled by Congress.

Specifically, in response to a flood of litigation caused by the earlier decisions, Congress had passed the Portal-To-Portal Act in 1947 to clarify that employers are not obligated to pay employees for activities which are “preliminary” or “postliminary” to the principal activities they are employed to perform.  As such, time spent before or after a worker’s “principal activities” is not compensable unless it is spent on activities that are themselves “integral and indispensable” to the worker’s principal activities.  Regulations interpreting the Portal-To-Portal Act had long held that activities like checking into and out of work, or waiting in line to receive paychecks, is not compensable work time.

In its December 9th ruling, the Supreme Court reaffirmed that just because an activity may be required by, or may benefit, an employer, does not mean that it is a compensable “principal activity,” or is “integral and indispensable” to a principal activity.  The warehouse workers’ employer did not employ the workers to undergo security screenings; it employed them to retrieve products from warehouse shelves and to package the products for shipment to customers.  The security screenings were also not “integral and indispensable” to the warehouse workers’ principal activities because their employer could have eliminated the screening requirement altogether without impairing the workers’ ability to perform their jobs.

In reaching its decision, the Supreme Court stated a new definition of “integral and indispensable” activities to guide lower courts.  An activity is now “integral and indispensable” to an employee’s principal work activities if it is an “intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities.”  Examples include time spent by battery-plant employees showering and changing clothes because chemicals in the plant are toxic to humans.  It also includes time spent by meatpacker employees sharpening knives because dull knives cause inefficiency and other problems on the production line. 

The Supreme Court’s decision gives employers much-needed certainty regarding the compensability of certain “preliminary” or “postliminary ” activities.  It clarifies that most employers may continue performing uncompensated pre- and post-shift security or anti-theft screenings without fear of successful FLSA collective actions.  The decision is particularly relevant to employers in the retail industry, who regularly conduct anti-theft screenings, and to other employers who are increasingly performing security screenings in an era of heightened concerns over terrorism.

Because the FLSA sets minimum standards for wage and overtime payments, states may set higher standards for compensable work  time, including with respect to “preliminary” or “postliminary” activities.  Unions may also bargain with employers to make such activities compensable.  But the Supreme Court’s recent decision helps push back on the tide of FLSA collective actions filed by employees claiming that certain activities are compensable because they are essential to their jobs.  The decision also follows a similar Supreme Court decision in January 2014, Sandifer v. U.S. Steel Corp., No. 12-417 (2014), in which the Court held that time spent by union-employees donning and doffing personal protective equipment was not compensable.  Taken together, these decisions suggest a concerted judicial effort to address the explosion of FLSA collective actions.


December 1, 2014

Colorado’s 2015 Minimum Wage Hike

Biggs_JBy Jude Biggs 

Amid legislative efforts to raise the federal minimum wage, the Colorado minimum wage is set to go up by 23 cents to $8.23 per hour automatically on January 1, 2015.  The state minimum wage is adjusted annually for inflation, as required by Article XVIII, Section 15, of the Colorado Constitution.  The minimum wage for tipped employees will be $5.21 per hour.

Employees Subject to the Colorado Minimum Wage

Colorado employees are entitled to the state minimum wage in two situations, namely if covered by (1) Colorado Minimum Wage Order Number 31 (Minimum Wage Order); or (2) the minimum wage provisions of the federal Fair Labor Standards Act (FLSA).  The Minimum Wage Order applies to certain employers/employees for work performed within the state of Colorado in the following four industries:

  1. Retail and Service
  2. Commercial Support Service
  3. Food and Beverage
  4. Health and Medical

Each industry is defined within the Minimum Wage Order.  Employers covered by the Minimum Wage Order must comply with not only the minimum pay requirements, but also obligations related to meal and rest periods, overtime pay, uniforms, recordkeeping and other labor standards.

Employees subject to the minimum wage provisions of the FLSA (and therefore, also entitled to the Colorado minimum wage) include those non-exempt workers performing work involved in interstate commerce and those working for a business or organization that has two or more employees and has an annual dollar volume of business of at least $500,000 or a hospital, school, government agency or residential medical or nursing facility, regardless of annual sales. 

If an employee is subject to both the state and federal minimum wage laws, they are entitled to be paid the higher of the two hourly minimum rates of pay.  At present rates, the $8.23 Colorado minimum wage trumps the federal $7.25 minimum hourly rate so employers must pay their non-exempt employees working in Colorado at the higher Colorado rate.

Inflation Adjustment Based on Consumer Price Index

The Constitutionally required annual adjustment in the Colorado minimum wage is measured by the Consumer Price Index (CPI) for Colorado.  According to the federal Bureau of Labor Statistics, the CPI for the Denver-Boulder-Greeley metropolitan area of Colorado increased 2.9 percent from the first half of 2013 to the first half of 2014.  The overall increase was driven by a nearly 5.0 percent increase in costs for housing as well as a 3.9 percent increase in energy costs and a 2.0 percent increase in food prices.  The 2.9 percent raise in the CPI for Colorado was then applied to the 2014 state minimum wage of $8.00 per hour, resulting in a 23 cent per hour increase in the minimum wage for 2015.

Plan Now for the January 1st Wage Increase

Businesses and organizations with employees who are subject to Colorado’s minimum wage should take steps now to update their payroll systems and practices in order to implement the new minimum wage on January 1, 2015.  Employers that use an outside payroll vendor should confirm that the payroll provider has programmed the new Colorado minimum wage in their systems to take effect on January 1.  Note, too, that employers subject to the Colorado Minimum Wage Order must post a copy of the new Minimum Wage Order in their workplace in an area frequented by employees where it may be easily read during the workday.  The Colorado Department of Labor and Employment, Division of Labor, provides a copy of Minimum Wage Order Number 31 at

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