Category Archives: Legislation

February 23, 2017

Nevada Non-Compete Agreements Under Attack in Legislature

By Dora Lane

Non-compete provisions in employment contracts will be vastly limited if a new bill recently introduced in the Nevada Assembly is enacted into law. AB 149 would make a non-compete restriction void and unenforceable if it prohibits an employee “from pursuing a similar vocation in competition with or becoming employed by a competitor of his or her employer for a period of more than 3 months after the termination of the employment of the employee.”  (emphasis added.)

Reasonableness Restricted To Three Months

Under current Nevada law, an employer may enter into an agreement with an employee that prohibits the employee from competing with the employer or becoming employed with a competitor for a specified period of time. (NRS 613.200). The Nevada Supreme Court has held that such restraints of trade must be reasonable to be enforceable. According to the Court, a non-compete agreement is reasonable if the restraint is not “greater than is required for the protection of the person for whose benefit the restraint is imposed” and does not impose an undue hardship on the person restricted by the non-compete. In determining whether a specific non-compete restriction is reasonable, Nevada courts look at the duration of the restriction, the territory in which the employee is restrained from employment, and the type of employment that the employee is restrained from pursuing.

The new bill would set a concrete limit on the reasonableness of post-employment competitive restrictions by limiting the duration to three months or less. Any non-compete seeking to restrict competitive activity by a former employee for more than three months would be against public policy, void, and unenforceable. The bill states that a longer restriction necessarily imposes a restraint greater than necessary for the protection of the employer and creates an undue burden for the employee.

Fines and Penalties For Longer Non-Competes

AB 149 would impose penalties on persons, associations, companies, corporations, agents, or officers who negotiate, execute, and enforce agreements that are not compliant with the bill’s mandates. In other words, if an employer willfully enters into a non-compete agreement that restricts post-employment competition for longer than three months, it may be subject to fines and penalties. Parties who willfully prevent a former employee from obtaining employment elsewhere beyond the three-month restriction would be guilty of a gross misdemeanor and subject to a fine of up to $5,000. In addition, the Labor Commissioner could impose against each responsible party an administrative penalty of up to $5,000 for each violation as well as investigative costs and attorney’s fees incurred in any associated proceeding.

Stay Tuned

As proposed, the non-compete limitation would become effective July 1, 2017. The bill was referred to the Committee on Commerce and Labor after its introduction by Assemblyman Richard Carrillo. We will continue to follow this bill as it is considered by the Nevada legislature.

February 3, 2017

Wyoming Legislature Convenes And Employment Bills Are On Deck

By Brad Cave

The Wyoming Legislature convened its general session on January 10, 2017. A bunch of interesting employment-related measures have been filed for the Legislature’s consideration. Some make good sense; others not so much. Employers can follow the progress of these proposals through the Legislature’s website at legisweb.state.wy.us, and we will update you as the session progresses.

Unemployment and Workers Compensation

House Bill 71 would permit the Unemployment Insurance Division to establish an Internet-based communication system to transmit determinations, decisions or notices when the claimant or the employer agree to receive those documents through the system. The bill would establish rules for determining when documents are delivered using such a system and acknowledgement of delivery under the system. No action has been taken on this proposal.

House Bill 84 would authorize the Department to enter into installment payment agreements with employers who are delinquent on the payment of workers compensation premiums, lowers the interest rate on delinquencies to 1%, and gives the Department some discretion on whether to sue or shut down an employer who is delinquent in paying premiums. The House Labor, Health and Social Services Committee unanimously adopted a “do pass” recommendation for this bill.

Similarly, House Bill 85 authorizes the Department of Workforce Services to enter into agreements with employers for the repayment of delinquent unemployment contributions of up to twelve months in duration. The bill would also reduce the interest rate for delinquent contributions from 2% to 1%. This bill has been referred to the House Labor, Health and Social Services Committee for consideration, but no action has been taken by the committee.

Senate File 101 would exempt seasonal employment from unemployment benefits and premiums. The measure would define seasonal employment as employment limited to 20 weeks in any 12 month period, and exclude seasonal employment and wages earned from such employment from unemployment insurance purposes. This proposal has been referred to the Senate Labor, Health and Social Services Committee.

Wages 

In 2015, the Legislature changed Wyoming law to permit employers to make final wage payments to employees on the employer’s regular payroll schedule, regardless of the reason for termination. House Bill 92 amends that schedule to require employers to comply with any time specified under a collective bargaining agreement between the employer and its employees’ union. The bill passed the House without opposition, and is presently awaiting action by the Senate.

House Bill 140 is a perennial offering to raise the minimum wage. The amount of the proposed increase has changed from year to year. This year’s bill calls for a minimum wage of not less than $9.50 per hour, and a training wage for the first six month’s of employment of $7.50. Under the measure, tipped employees would receive a minimum wage of $5.50, not considering tips, and at least $9.50 per hour with tips. Tipped employees would also be able to file a claim for three times the amount the employer owes if the employer fails to make up the difference between the general minimum wage and the tipped employee minimum wage, when the employee’s tips do not cover the difference. The bill is awaiting action by the House Labor, Health and Social Services Committee.

House Bill 209 would require the Department of Workforce Services to update a 2002 study about gender wage disparity in Wyoming. The bill would require the study to analyze disparities on the basis of county and occupation, and to opine on the causes, impacts, solutions and benefits of resolving any such disparities. This proposal has been introduced, but no action or committee assignment has been made.

Veterans, Military Service and Military and Veterans Spouses

The Joint Transportation, Highways and Military Affairs Interim Committee proposed a trio of veterans’ preference measures:

Senate File 53 would require that all public employers, and all private employers hiring for public works projects, give veterans a “preference prior to the interview process.” The measure would amend current law to direct that, if a public employer uses a numerical scoring system for applicants, veterans shall be granted a 5% advantage over any nonveteran, and, if the veteran has a service-connected disability, a 10% advantage. If no scoring system is used, a qualified veteran shall be given preference over any equally qualified nonveteran candidate.  This file would define veteran as any honorably discharged service member or a serving spouse of any deceased service member. After several attempts to amend the proposal, it passed the Senate by a large majority and is awaiting action in the House.

Senate File 54 would create a preference for the hiring of military spouses by all public entities and private employers with contracts on public works projects. A military-spouse applicant would be preferred for appointment if the applicant possesses the business capacity, competency, education or other qualifications for the position. If a public entity uses a numeric scoring system, the military spouse shall be allowed a 5% advantage over any competitor-applicant. If no numeric scoring system is used for a position with a public entity, the military spouse shall be given preference over equally qualified candidates. This file passed the Senate by a narrow five-vote majority, and is waiting for consideration by the House.

Senate File 55 would have amended the Wyoming Fair Employment Practices Act to prohibit discrimination against an applicant or employee because that person is a military spouse. A military spouse is an individual married to an active uniformed military member or member of the national guard or any guard reserve or auxiliary component. The Senate defeated this measure by a vote of 11 to 19.

Finally, House Bill 101 would permit, but not require, school district boards to create a hiring preference for veterans and surviving spouses of veterans. This bill would also clarify that the current law requiring veterans’ preferences does not apply to school districts. The House Education Committee gave this bill a unanimous “do pass” recommendation, and it is working its way through the process on the House floor.

Franchisor Protection 

Senate File 94 appears to be a reaction to the National Labor Relations Board’s efforts to treat the employees of franchisees, most notably the employees of various McDonald’s franchisees around the country, as employees of the franchiser corporation. The measure declares that franchisee employees could not be deemed an employee of a franchiser for any purpose under Title 27 of the Wyoming Statutes, which would include unemployment, workers’ compensation, fair employment, and the wage payment statutes. The measure has been assigned to the Senate Corporations Committee for consideration.

Waiver of Governmental Immunity for Health Care Whistleblower Claims 

Wyoming law currently prohibits discrimination against employees of licensed health care providers who report any violation of state or federal law to the Wyoming Department of Health. However, most hospitals in Wyoming are operated by governmental entities which are immune from liability under the Wyoming Governmental Claims Act for any claim unless the claim is specified as an exception under that Act. House Bill 142 would amend the Governmental Claims Act to create an exception for discrimination against whistleblowers who are employed by public hospitals. This bill passed the House with a strong majority, and is waiting for action in the Senate.

Early Retirement for State Employees 

Senate File 95 would create a one-time early retirement program  for eligible state employees. The program will apply only to employees who elect to accept the benefit between April 1 through June 30, 2017. Eligible employees would be defined as those between 52 and 55 years of age, with 15 to 18 years of services, such that their age and years of service total at least 70. Eligible employees who accept the offer will receive an enhanced monthly retirement benefit until age 65, and other insurance related benefits. The measure would also restrict the ability of the various state agencies to fill any position vacated by an eligible employee who accepts the early retirement benefit. The measure is currently waiting for consideration by the Senate Revenue Committee. 

Resistance to Federal Workplace Safety Regulations 

House Bill 70 is an effort to resist efforts by the United States Occupational Safety and Health Administration (OSHA) to regulate in certain areas. The measure contends that OSHA has “expanded its regulations of highly hazardous chemicals on questionable authority.” This measure would authorize the Governor and the Attorney General to defend the interests of Wyoming citizens against regulations proposed by federal OSHA in areas of “questionable” federal authority. The measure does not specify those areas. The House passed this bill with a strong majority, and it is waiting for consideration in the Senate.

Civil Rights

House Bill 135 would create the Government Nondiscrimination Act, which would prohibit any government employer from discriminating against any person because the person believes or acts based on a religious belief or moral conviction that marriage is a union of one man and one woman, and that gender is a person’s biological sex as determined by anatomy and genetics at the time of birth. The measure would have far-reaching implications in various areas of state law beyond employment protections, and would also prohibit any employment-related actions for those prohibited reasons. The measure would create a legal claim for violation of the statute, with broad remedies including compensatory damages, and would eliminate the immunity of governmental entities for violations of the proposed statute. This bill has been referred to the House Judiciary Committee for consideration.

Joint Resolution SJ0001 has been proposed to create an individual right of privacy in the Wyoming Constitution. The amendment would read that the “right of individual privacy . . . shall not be infringed without the showing of a compelling state interest.” The resolution does not explain how the amendment would apply to the relationship between governmental entities and their employees with respect to internal investigations, drug testing or other aspects of the public employment relationship. This resolution was received for introduction in the Senate, but no action has been taken on it since introduction.

Joint Resolution SJ004 has been proposed before the Senate to put a resolution before Wyoming voters to amend the Wyoming Constitution. The constitutional amendment would prohibit discrimination or preferences  in public employment, contracting, education and a variety of other public services and activities on the basis of race, sex, color, ethnicity or national origin. The amendment would apply to all public entities. This resolution was received for introduction in the Senate, but no action has been taken on it since introduction.

Bottom Line 

We encourage Wyoming employers to keep tabs on these bills, and contact your Senator or Representative if these impact your organization or industry. The legislative session adjourns in early March, so additional measures may be introduced. We will continue to update you as the session continues over the next month.

January 24, 2017

New Mexico Legislature Considers Significant Employment Bills

west_lBy Little V. West 

The New Mexico Legislature is one week into its 60-day session, which ends on March 18, 2017. Legislators have introduced a number of bills that, if enacted, would affect employment laws for private employers in New Mexico. Here are the highlights of the most significant employment-related bills presently being considered.

Increasing the Minimum Wage

  • HB 27, introduced by Rep. Patricia Roybal Caballero (D-Bernalillo), would increase the state minimum wage from $7.50 to $15.00 per hour effective January 1, 2018. On January 1 of each successive year, the state minimum wage would automatically increase to account for a cost of living increase using a percentage set by the United States Department of Labor’s consumer price index for all urban customers (CPI-U). The bill also would eliminate the lower minimum wage provision for employees who customarily and regularly receive more than $30 per month in tips.HB 27 has been sent to the House Business and Industry Committee, and referred to the House Judiciary Committee and the House Business and Industry Committee.
  • HB 67, introduced by Rep. Miguel P. Garcia (D-Bernalillo), would increase the state minimum wage from $7.50 to $8.40 per hour on January 1, 2018, to $9.20 per hour on January 1, 2019, and to $10.10 per hour on January 1, 2020. In a provision that apparently conflicts with this schedule of set rates for each year, HB 67 also calls for a cost of living increase of the previous year’s minimum wage rate using the percentage tied to the CPI-U. HB 67 would modify the lower minimum wage provision for tipped employees from $2.13 per hour to a rate that is forty percent of the state minimum wage for non-tipped employees.HB 67 has been sent to the House Labor and Economic Development Committee, and referred to the House Business and Industry Committee and the House Labor and Economic Development Committee. 
  • SB 36, introduced by Sen. William P. Soules (D-Doña Ana), would increase the state minimum wage to $8.45 per hour, effective July 1, 2017, with an annual cost of living increase on January 1 of each successive year, to be set by the New Mexico Department of Workforce Solutions based upon the CPI-U, and rounded to the nearest multiple of five cents. SB 36 would provide for an exception for small businesses, allowing employers with ten or fewer employees to continue to pay the current $7.50 hourly minimum wage, adjusted annually on January 1 of each following year, if there is a cost of living increase. SB 36 also includes a trainee exception which would permit employers with ten or more employees to pay trainees a minimum wage of $7.50 per hour for the first six months of employment, again with that rate subject to a cost of living increase on January 1 of each following year, if any. SB 36 would also increase the minimum wage for tipped employees to $2.65 per hour, to be adjusted annually. SB 36 has been sent to the Senate Public Affairs Committee, and referred to the Senate Corporations and Transportation Committee and the Senate Public Affairs Committee. 

Employee Leave

  • Caregiver Leave Act: HB 86, introduced by Reps. Deborah A. Armstrong (D-Bernailillo), and Michael Padilla (D-Bernalillo), would require employers that offer sick leave for an employee’s own illness, to allow accrued sick time to be used by employees to care for sick family members under the same terms and procedures that the employer imposes for any other use of sick leave by the employee. Family members would be defined as a person related within a third degree of consanguity or affinity to the employee. The bill would prohibit retaliation against an employee for requesting or using caregiver leave, filing a complaint with the Department of Workforce Solutions for violation of the Caregiver Leave Act, cooperating in an investigation or prosecution of an alleged violation of the Act, or opposing any policy, practice or act prohibited by the Act. HB 86 has been sent to the House Health & Human Services Committee, where it is set for hearing on January 25, 2017, and referred to the House Judiciary Committee and the House Health and Human Services Committee.
  • Military Reemployment Amendment: HB 83, introduced by Rep. Debbie Rodella (D-Rio Arriba, Santa Fe and Taos), would extend New Mexico’s existing law protecting the reemployment of persons in the armed forces to those that have served in the national guard of any other state or territory of the United States, clarifying that the protections are not limited only to members of the New Mexico national guard.HB 83 has been sent to the House State Government, Indian & Veterans’ Affairs Committee and referred to the House Judiciary Committee and the House State Government, Indian & Veterans’ Affairs Committee.

Pregnancy Discrimination and Accommodation Bill 

  • Pregnant Worker Accommodation Act: HB 179, introduced by Reps. Gail Chasey (D-Bernalillo), Deborah A. Armstrong (D-Bernalillo), and Joanne J. Ferrary (D-Doña Ana), would require employers of four or more employees to reasonably accommodate a known limitation arising out of pregnancy, childbirth, and related conditions. Reasonable accommodations would include modifying or adapting an employee’s work environment, work rules, or job responsibilities for as long as necessary to enable an employee with limitations due to pregnancy or childbirth or a related condition to perform the job, absent an undue hardship on the employer. The proposed law sets forth a number of factors to determine what may constitute an undue hardship.

Read more >>

December 22, 2016

Small Employers Permitted To Reinstate Health Premium Reimbursement Arrangements

selzer_kBy Kevin Selzer

With the health and welfare benefit plan industry eyeing potential regulatory changes under a Trump administration, President Barack Obama signed into law a new rule that partially restores health plan flexibility restricted by the Affordable Care Act (ACA). The 21st Century Cures Act (Act) allows small employers to establish arrangements that reimburse employees for premiums on health coverage that is not maintained by the employer (e.g., coverage obtained by an employee on a state exchange/marketplace).

Background On HRAs and the ACA

In 2013, the IRS released guidance stating that an employer arrangement designed to reimburse premiums for non-employer maintained health coverage (on a pre-tax or after-tax basis) is a group health plan that violates certain ACA reforms. This guidance was widely viewed to prevent employers from using a health reimbursement arrangement (HRA), integrated with non-employer maintained health coverage, as a way of circumventing the ACA employer mandate (for large employers). However, the guidance applied to all employers, much to the ire of small employers, many of whom relied on these arrangements to provide a pre-tax cost-effective health benefit. Certain transition relief was provided for small employers, but the relief ended in mid-2015. As a result, many small employers were left out in the cold.

Small employers responded in different ways. Some adopted stipend or similar programs, whereby employees would be paid additional taxable compensation without strings attached (i.e., the employee could decide to use the amounts for health coverage or not). The end-result, however, was that tax-favored health benefits were generally limited to employers capable of sponsoring a major medical health plan.

21st Century Cures Act Permits Certain HRAs

The Act permits certain small employers to sponsor arrangements that will reimburse employees on a pre-tax basis (if certain conditions are met) for amounts incurred for independent (non-employer maintained) health coverage, including health insurance premiums. These arrangements, called qualified small employer health reimbursement arrangements (QSEHRAs), must meet the following requirements:

  • permitted only for small employers, defined as those who did not have an average of 50 full-time employees, including full-time equivalents, in the prior year;
  • the employer may not otherwise offer a group health plan to any employees;
  • the employer must offer the QSEHRA to all employees (with certain limited exceptions);
  • the maximum annual benefit is $4,950 for reimbursements of employee-only coverage and $10,000 for reimbursements of family coverage;
  • the reimbursement will be nontaxable if the eligible employee demonstrates that he or she has minimum essential coverage; and
  • the employer must provide eligible employees with notice containing required disclosures.

The rule changes are intended to be effective January 1, 2017.

October 4, 2016

Employment Contracts with California Employees Require California Law

6a013486823d73970c01b7c85edbc0970b-120wiBy Jude Biggs

Beginning January 1, 2017, employers may not require a California employee to agree to litigate claims in a state other than California or to apply the law of another state to disputes that arose in California. These new restrictions pose particular problems for companies headquartered outside of California who employ workers in California.

New CA Labor Code Section 925

Recently signed into law by Governor Jerry Brown, Senate Bill 1241 adds section 925 to the California Labor Code. It provides that an employer “shall not require an employee who primarily resides and works in California, as a condition of employment, to agree to a provision that would do either of the following:

  • Require the employee to adjudicate outside of California a claim arising in California.
  • Deprive the employee of the substantive protection of California law with respect to a controversy arising in California.”

In other words, an employer may not force an employee who primarily works and lives in California to enter into an employment agreement, as a condition of employment, that provides that any claims must be resolved, either in court or by arbitration, in another state (a so-called forum-selection clause) or that another state’s law, which offers less protection to the employee than California law, will apply (a choice-of-law provision).

Why It Matters

California law is typically more pro-employee than other states’ laws. For instance, California law prohibits employers from requiring employees to waive their right to a jury trial before a dispute arises and places substantial restrictions on arbitration agreements.  It also requires the payment of business expenses, where many other states do not.

Multi-state companies frequently seek to create some uniformity and predictability in where employment disputes will be litigated so they insert a venue clause into their employment agreements. Such clauses often provide that disputes must be heard in the state where the business is based or where its legal team is located, regardless of where the employee lives or works. Similarly, companies may write into contracts that the law to be applied is that of the state where they are headquartered or incorporated. This offers the business uniformity across all its operations and helps to avoid onerous employment laws in certain states.

The new Labor Code section 925 makes non-California venue and choice-of-law provisions virtually unenforceable per se for California employees, when made a condition of employment. If an employee has to go to court to enforce his or her rights to have a case in California and to use California law in the case, the court may award reasonable attorney’s fees to the employee. Read more >>

June 13, 2016

Repeal of Colorado’s Employment Verification Law

Tsai_RBy Roger Tsai

Effective August 10, 2016, Colorado employers no longer need to complete and maintain the state employment verification affirmation form that ensures that new hires are legally eligible for employment in the United States. Gone too will be the state requirement that employers keep copies of the documents provided by new hires to show their employment eligibility and identity in support of the I-9 verification process. Signed into law by Governor John Hickenlooper on June 8, 2016, House Bill 16-1114 repeals the state statutory provisions that duplicated much of the employment verification requirements of the federal I-9 forms.

Legislature Relieves Extra Burden on Colorado Employers

In repealing most of section 8-2-122 of the Colorado Revised Statutes, the Colorado legislature acknowledged that the additional state employment verification affidavit and documentation requirements imposed an extra, redundant burden on employers while doing nothing to further prevent unauthorized individuals from working in our state. With the repeal of the additional state verification requirements, the fines and penalties for failure to comply with those requirements under state law are repealed as well.

Section 8-2-122 does not go away entirely, however, as the legislature kept the provision that permits the director of the Colorado Division of Labor to request documentation from employers to show they are in compliance with the I-9 employment verification requirements. The director, or his/her designee, still may conduct random audits of employers to ensure compliance with I-9 obligations. The legislature also maintained the public policy statement that this statute is to be enforced in a non-discriminatory fashion.

What Colorado Employers Should Do

For new employees hired in the next two months, before August 10, 2016, continue to comply with the Colorado employment verification requirements as well as your federal I-9 obligations.

For new employees hired on or after August 10, 2016, you need only comply with your federal I-9 employment verification requirements. That means newly hire employees must complete and sign Section 1 of Form I-9 no later than the first day of employment, and employers must complete Section 2 of the I-9 and examine evidence of both identity and employment authorization within three business days of the employee’s first day of employment. Federal law does not require you to keep copies of the documents provided by the employee to show identity and employment authorization, but employers may choose to retain these documents at their discretion in case an federal immigration audit occurs.

What should you do with the Colorado employment verification affirmation forms and copies of authorization document for your current employees after August 10th?  Your best practice is to continue to keep those forms for the duration of each employee’s employment since the forms were required at the time you hired them. Once an employee is no longer employed by your organization, you may dispose of the Colorado-specific affirmation forms but continue to retain the I-9 forms for one year after the date employment ends, or three years after the date of hire, whichever is later.

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June 6, 2016

Colorado’s New Pregnancy Accommodation Law

By Micah Dawson

Effective August 10, 2016, Colorado employers will commit an unfair employment practice if they fail to provide a reasonable accommodation for an employee, or an applicant for employment, for health conditions related to pregnancy or physical recovery from childbirth, absent an undue hardship. Last week, Colorado Governor John Hickenlooper signed into law House Bill 16-1438 which requires Colorado employers to engage in an interactive process to assess potential reasonable accommodations for applicants and employees for conditions related to pregnancy and childbirth. The new law, section 24-34-402.3 of the Colorado Anti-Discrimination Act, also prohibits employers from denying employment opportunities based on the need to make a pregnancy-related reasonable accommodation and from retaliating against employees and applicants that request or use a pregnancy-related accommodation.

 Posting and Notification Requirements

The new law imposes posting and notification requirements on Colorado employers. By December 8, 2016 (120 days from the effective date), employers must provide current employees with written notice of their rights under this provision. Thereafter, employers also must provide written notice of the right to be free from discriminatory or unfair employment practices under this law to every new hire at the start of their employment. Employers in Colorado also must post a written notice of rights in a conspicuous place at their business in an area accessible to employees.

For more information on this new law, read our full post about its requirements here.

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June 2, 2016

Colorado Bill Will Give Employees Right to Review Their Personnel Files

Williams_BBy Brad Williams

Most employees in Colorado currently have no legal right to review or copy their personnel files. But that is about to change. A bill awaiting signature by Colorado Governor John Hickenlooper will require private employers to allow employees to inspect and copy their personnel files at least annually upon request. If enacted, House Bill 16-1432 will also grant former employees the right to inspect their personnel files one time after termination of employment. Once signed, the bill will become effective on January 1, 2017.

Employers Must Allow Access to Pre-Existing Personnel Files

Under the bill, employers are not required to create or keep personnel files for current or former employees. They are also not required to retain any particular documents that are – or were – in an employee’s personnel file for any particular period of time. However, if a personnel file exists when an employee asks to inspect it, the employer must allow access.

The inspection should take place at the employer’s office and at a time convenient for both parties. Employers may have a manager of personnel data, or another employee of their choosing, present during the inspection. If an employee asks to copy some or all of his or her file, the employer may require payment of reasonable copying costs. Because the bill is silent regarding whether employees may bring others (such as their lawyers) to inspections, employers should likely limit inspections to only the requesting employees.

What Constitutes a “Personnel File”?

The bill defines a “personnel file” as an employee’s personnel records which are used to determine his or her qualifications for employment, promotion, additional compensation, employment termination, or other disciplinary action. This encompasses both records kept in an actual file, and those employers may collect through reasonable efforts. Put differently, employers cannot avoid the bill’s mandates by simply scattering employee records amongst multiple file cabinets. 

The bill provides numerous exceptions to the documents that must be made available for inspection. The following are not included in the definition of “personnel files” and need not be made available:

  • documents required to be placed or maintained in a separate file from the regular personnel file by federal or state law;
  • records pertaining to confidential reports from previous employers;
  • an active criminal or disciplinary investigation, or an active investigation by a regulatory agency; and
  • information which identifies another person who made a confidential accusation against the requesting employee.

Read more >>

May 11, 2016

Colorado Pregnancy Accommodation Bill Passes

By Micah Dawson

The Colorado legislature passed House Bill 16-1438 requiring Colorado employers to engage in an interactive process to assess potential reasonable accommodations for applicants and employees for conditions related to pregnancy and childbirth. The bill, expected to be signed into law by Governor Hickenlooper, will ensure that employers engage in the interactive process, provide reasonable accommodations to eligible individuals, prohibit retaliation against employees and applicants that request or use a pregnancy-related accommodation, and provide notice of employee rights under this law. Once signed by the Governor, the new law will go into effect on August 10, 2016.

Pregnancy-Related Workplace Accommodations

This law will add a new section, section 24-34-402.3, to the Colorado Anti-Discrimination Act, making it an unfair employment practice for you to fail to provide a reasonable accommodation for an applicant for employment, or an employee, for health conditions related to pregnancy or physical recovery from childbirth, absent an undue hardship on your business. You also may not deny employment opportunities based on the need to make a pregnancy-related reasonable accommodation.

Interactive Accommodation Process 

You will need to engage in a “timely, good-faith, and interactive process” with the applicant or employee to determine effective reasonable accommodations.

Examples of reasonable accommodations include but are not limited to:

  • more frequent or longer breaks
  • more frequent restroom, food and water breaks
  • obtaining or modifying equipment or seating
  • temporary transfer to a less strenuous or hazardous position, if available (with return to the current position after pregnancy)
  • light duty, if available
  • job restructuring
  • limiting lifting
  • assistance with manual labor, or
  • modified work schedules.

In engaging in this process, you need to be sure to document your good-faith efforts to identify and make reasonable accommodations because doing so can negate punitive damages if an individual sues you for failure to make a pregnancy-related accommodation. You may require that the employee or applicant provide a note from her health care provider stating the need for a reasonable accommodation.

No Forced Accommodations or Leave 

Under the new law, you may not force an applicant or employee affected by pregnancy-related conditions to accept an accommodation that she has not requested, or that is unnecessary to perform the essential function of her job. Similarly, you may not require a pregnant employee to take leave if there is another reasonable accommodation that may be provided. As stated in the legislative declaration for the bill, the intent is to keep pregnant women employed and generating income so forcing pregnant women to take time off during or after their pregnancy generally is not permitted.

Analyzing Undue Hardship Of Accommodations 

Reasonable accommodations may be denied if they impose an undue hardship on your business. That requires an analysis of the following factors in order to decide whether the accommodation would require significant difficulty or expense:

  • the nature and cost of the accommodation
  • the overall financial resources of the employer
  • the overall size of the employer’s business with respect to the number of employees and the number, type, and location of the available facilities, and
  • the accommodation’s effect on expenses and resources or its impact on the operations of the employer.

Broad Definition of “Adverse Action” in Retaliation Prohibition 

The new law prohibits you from taking adverse action against an employee who requests or uses a reasonable accommodation for a pregnancy-related condition. An adverse action is defined very broadly as “an action where a reasonable employee would have found the action materially adverse, such that it might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” This approach harkens to the NLRB’s use of a “chilling effect” on employee rights as a basis for unfair labor charges. By not limiting an adverse action to concrete actions, such as a termination, demotion, pay reduction, or similar actions, the broad definition opens the door to a wide range of employer responses that could be deemed retaliation.

Notifying Employees of Their Rights

If signed into law, you will have until December 8, 2016 (120 days from the effective date) to provide current employees with written notice of their rights under this provision. Thereafter, you also must provide written notice of the right to be free from discriminatory or unfair employment practices under this law to every new hire at the start of their employment. You also have to post the written notice in a conspicuous place at your business in an area accessible to employees.

What To Do Now 

With enactment almost certain, prepare now to comply with this new pregnancy accommodation requirement. A checklist of action items includes:

  • Review and update job descriptions to designate essential functions of each job.
  • Update your accommodation policies and handbook to include pregnancy-related accommodations and information on how employees may request such an accommodation.
  • Train your supervisors, managers, and human resources department on the new accommodation requirements and the anti-retaliation provision.
  • Prepare written notifications of employee rights to send to current employees no later than December 8, 2016.
  • Include the written notification of rights in your onboarding materials so that after December 8, 2016, all new hires receive the notice.
  • Post the written notification of rights in a conspicuous place accessible to employees, such as your lunch room bulletin boards, intranet, or wherever other required employment law posters are posted.

March 23, 2016

Idaho’s Non-Compete Law Set to Enhance Employer Enforcement

Bennett_Dean

By A. Dean Bennett

Idaho businesses will have an easier time enforcing non-compete agreements that restrict key employees and independent contractors from engaging in post-employment competition, thanks to a bill passed by the Idaho legislature this week. HB 487 provides that if a court finds that a key employee or key independent contractor breaches a non-compete agreement, a rebuttable presumption of irreparable harm is established. The burden of overcoming that presumption shifts to the former employee to show that he or she has no ability to adversely affect the employer’s legitimate business interests. The bill was sent on Tuesday to Governor Otter, who is expected to sign it into law.

Pro-Business Non-Compete Provision

While some neighboring states, such as Utah, have passed legislation to restrict the use of non-competes and other post-employment restrictive covenants, Idaho has strengthened its non-compete law in favor of protecting employer rights. Not without controversy, this bill reportedly grew out of a recent lawsuit filed by LeapFox Learning, a Meridian computer training company, against its former business director. LeapFox Learning’s owner, Codi Galloway, reportedly testified before the Idaho Senate and Human Resources Committee, that after her former business director left to work for a competitor, she lost customers, vendors, and contractors as a result of that ex-employee’s use of LeapFox Learning’s company’s contact lists and marketing and business strategies.

 

Tough Burden For Employees To Overcome

Opponents of the bill argued that it infringes on an employee’s ability to change jobs and move to a better position or even start his or her own company. In addition, by placing the burden to rebut the presumption of irreparable harm on the former employee, it essentially forces the employee to prove a negative, namely that he or she cannot harm the former employer’s business. Assistant Chief Deputy Brian Kane is quoted in the Idaho Statesman as saying, “The burden necessary to overcome this presumption may be extremely difficult, if not impossible.”

Proponents, however, reply that the presumption of irreparable harm applies only to non-competes of key employees or key independent contractors, which are defined as the highest paid five percent of employees or independent contractors.  Consequently, the amendment will not change enforcement proceedings for non-competes involving lower level employees. 

Review Non-Competes For Idaho Compliance

To take advantage of numerous rebuttable presumptions contained in Idaho’s non-compete law, employers should review their non-competes to make certain they do not exceed the time, geographic, and business scope parameters deemed reasonable under the law. In particular, review section 44-2704 of the Idaho Code or consult with competent legal counsel to ensure your restrictive covenants protect your business assets in the best way possible.

If you have any questions about the new bill, or your company’s non-compete agreements, contact Dean Bennett atadbennett@hollandhart.com or 208-383-3993.