Category Archives: Uncategorized

August 23, 2016

Employer Violates NLRA By Barring Employees From Bringing Class or Collective Actions, Says Ninth Circuit

By Brian Mumaugh

Bad news for employers in the ongoing saga of whether an employer violates the National Labor Relations Act (NLRA) by requiring that employees pursue any legal dispute against the company on an individual basis, rather than in a class or collective action with other employees. The Ninth Circuit Court of Appeals recently ruled that the NLRA precludes employees from waiving their right to have disputes heard collectively and an employer that requires employees to waive that right as a condition of employment commits an unfair labor practice. Morris v. Ernst & Young, LLP, No. 13-16599 (9th Cir. August 22, 2016).

Broad Ruling Extends To Any “Separate Proceedings” Requirement

Accounting firm Ernst & Young required its employees to sign agreements mandating that all legal claims against the firm be pursued exclusively through arbitration and only as individuals in “separate proceedings.” When employee Stephen Morris brought a class and collective action in federal court alleging that the firm misclassified employees denying them overtime pay under the Fair Labor Standards Act, Ernst & Young sought to compel arbitration on an individual basis pursuant to its arbitration agreement. The district court agreed, dismissing the federal court case and ordering arbitration.

Morris appealed, arguing, among other things, that the “separate proceedings” clause violated the NLRA. Morris relied on determinations by the National Labor Relations Board (the Board) in the D.R. Horton  and Murphy Oil cases in which the Board ruled that concerted action waivers violate the NLRA. The Ninth Circuit agreed. It ruled that when an employer requires employees to sign an agreement precluding them from bringing a concerted legal claim regarding wages, hours, and terms and conditions of employment, the employer violates the NLRA.

The Court focused on the Board’s interpretation of the NLRA’s statutory right of employees “to engage in . . . concerted activities for the purpose of . . . mutual aid or protection” to include a right to join together to pursue workplace grievances, including through litigation. It characterized this as a labor law case, not an arbitration case. It stated that the problem with the contract was not that it required arbitration, but that it excluded all concerted employee legal claims. The Court explained that the same problem would exist “if the contract required disputes to be resolved through casting lots, coin toss, duel, trial by ordeal, or any other dispute resolution mechanism, if the contract (1) limited resolution to that mechanism and (2) required separate individual proceedings.” Read more >>

April 12, 2013

Immigration Law Webinar: New I-9 Forms Effective on May 7th

Last month, U.S. Citizenship and Immigration Services announced that employers should begin to use the revised version of the I-9 employment eligibility verification form. The new I-9 will be mandatory for all employers beginning on May 7th.

Join us for a complimentary 30-minute webinar to learn what changes have been made and what you need to know about using the new I-9 form. 

Wednesday, April 24, 2013
Noon – 12:30 p.m. MST
Webinar login information will be included in your RSVP confirmation.

Roger Tsai, Of Counsel, Holland & Hart llp

Click here to RSVP now.

Please respond by Tuesday, April 23, 2013. 

Questions? Contact Tracy Taylor at

March 20, 2013


Dean Bennett
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Mr. Bennett represents public and private companies in both state and federal court to resolve complex contract and business disputes.
For more information about Dean Bennett, please visit his website bio.
Brad Cave
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Mr. Cave represents businesses, non-profit organizations, and public employers in litigation matters involving discrimination, harassment, retaliation, medical leave, wage and hour disputes, defamation, wrongful discharge, breach of contract, civil rights claims, and employment-related torts.
For more information about Brad Cave, please visit his website bio.
Steve Gutierrez
Denver Tech Center
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Mr. Gutierrez is the former Chair of the Labor and Employment Group at Holland & Hart LLP and resident in the firm’s Denver and Denver Tech Center offices. For more information about Steve Gutierrez, please visit his website bio.
Anthony Hall
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Anthony Hall practices primarily in the areas of labor and employment law. He provides litigation defense and extensive preventative counseling to clients in all areas of labor and employment law.
For more information about Mr. Hall, please visit his website bio.
Dora Lane
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Dora Lane practices primarily in the field of employment and labor law. Her experience includes counseling clients on wage and hour, retaliation, and other employment related issues.
For more information about Dora Lane, please visit her website bio.
Nicole Snyder
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Ms. Snyder’s practice focuses on virtually all aspects of transactional and employment law. Her transactional experience extends to general business planning, mergers and acquisitions, debt and equity transactions, and real estate transactions.
For more information about Nicole Snyder, please visit her website bio.
Mark Wiletsky
Of Counsel
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Mark Wiletsky provides quick, practical solutions to difficult employment-related problems.
For more information about Mr. Wiletsky, please visit his website bio.
Susan Woods
Marketing and Policy Attorney
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With years of experience representing employers, Ms. Woods assists clients with a variety of labor and employment matters. She helps clients create and review employee handbooks and develop policies.
For more information about Susan Woods, please visit her website bio.

January 25, 2013

President’s Recess Appointments to NLRB Unconstitutional

by Steven M. Gutierrez and Brian M. Mumaugh

The United States Court of Appeals for the District of Columbia issued the long anticipated ruling in the Noel Canning v. National Labor Relations Board case. In this case, Noel Canning ("Canning") asked the Court to review a decision by the National Labor Relations Board ("NLRB"), finding that Canning violated the National Labor Relations Act by refusing to sign a collective bargaining agreement reached with a Teamsters local union. While a review of an NLRB decision is considered by some routine, this case was not. In addition to Canning's arguments that the findings in the case were not supported by the evidence presented at hearing or the law (both arguments rejected by the D.C. Circuit), Canning also questioned the authority of the NLRB to issue its order on two constitutional grounds – (1) that the NLRB lacked authority to act because it did not have a quorum since three members of the five-member board were illegally appointed by the President without Senate confirmation as recess appointments and (2) the vacancies filled by the purported recess appointments did not actually happen during a recess of the Senate, as required under the Recess Appointments Clause of the U.S. Constitution.

Appointments Were Invalid Because They Were Not Made During "the Recess"

Under the Recess Appointments Clause, the President has the power "to fill up all Vacancies that may happen during the Recess of the Senate, . . . ." In this case, the D.C. Circuit Court concluded that President Obama's January 2012 alleged recess appointments to the NLRB of Board Members Sharon Block, Terence Flynn and Richard Griffin were not made during "the Recess" of the Senate. Instead, the January 4 appointments were made when the Senate was operating pursuant to a unanimous consent agreement that provided the Senate would meet in a pro forma session every three business days from December 20, 2011 through January 23, 2012. Because the Senate acted to convene the 112th Congress on January 3 — fulfilling a constitutional mandate that the Senate convene on that day — under the Appointments Clause of the U.S. Constitution, nominations of Officers of the United States made by the President require the advice and consent of the Senate.

Here, the recess appointments were made by the President on the claim that, although the Senate must give its advice and consent to any appointment, the Senate was not in session (and in a de facto recess) because the Senate's pro forma sessions occurred during the holiday season when the Senators were not actually present in the Senate Chamber. Therefore, the President claimed that the appointments were valid under the Recess Appointments Clause. Rejecting this argument, the D.C. Circuit reasoned that the term "the Recess" of the Recess Appointment Clause is by definition the period of time the Senate is not in session and therefore unavailable to receive and act upon nominations from the President. The Recess Appointments Clause has strict limits and appointments under this clause can be made only when the Senate is between sessions, not during a routine adjournment, a long weekend or a lunch break during regular workings sessions of the Senate and certainly not when the President unilaterally decides that the Senate is unavailable. Thus, the term "the Recess" is limited to intersession recesses. The D.C. Circuit Court pointed out that the Senate's role through advice and consent serves an important function as a check upon the President's power.

Appointments Also Invalid Because They Did Not Arise During the Recess

The D.C. Circuit went on to conclude that the appointments were also invalid because they did not actually "happen" during a recess. The three seats the President attempted to fill had become vacant on August 27, 2010, August 27, 2011 and January 3, 2012. The NLRB argued that these vacancies could be filled under the Recess Appointments Clause because the vacancies existed during the alleged recess. The Court, however, agreed with the employer and ruled that the vacancies must arise during the Recess, not just extend into the recess period. To rule otherwise would mean that a President could fill any vacancies during the Recess regardless of when the vacancy arose, meaning that a President would never have to submit nominees to the Senate for confirmation. The Court found that these three Board member vacancies did not arise during "the Recess" for purposes of the Recess Appointments Clause. Because the vacancies did not happen during an intersession recess and these appointments were made after Congress began a new session on January 3, the recess appointments were invalid. Without the three recess appointments, the NLRB lacked its required quorum of three members when it issued its decision in the Canning matter on February 8; therefore, the decision and order must be vacated.

Consequences of Invalidating the NLRB Appointments

The result of this decision is yet to be determined, but it certainly is a decisive blow to the President who, by appointing members to the NLRB in such a controversial fashion, opened the door to a historic ruling that his appointments were unconstitutional. Because the decision finds the appointments invalid from their inception, the more than 200 decisions issued since January 4, 2012 listed on the NLRB website may also be invalid. 2012 marked a year in which the NLRB made several highly publicized and controversial decisions concerning social media, at-will disclaimers and the reversal of some long-standing labor law. The President is surely going to be disappointed and whether the NLRB's direction is going to change the direction it appeared to go will depend largely on the make-up of the Board in the years to come.

September 14, 2012

Working from Home – Not a Reasonable Accommodation

By Mark Wiletsky

If an employee claims that she needs to work from home due to a medical condition, do you have to grant such a request under the Americans with Disabilities Act (ADA)?  Typically, the answer is no.  Physical attendance is often an essential job function.  So, even if some job duties could be performed remotely, being at work is still considered a critical part of the job.  In a recent case, a federal district court in Michigan reiterated that principle, rejecting a claim brought by the Equal Employment Opportunity Commission (EEOC) against Ford Motor Company.

In that case (EEOC v. Ford Motor Co., Case No. 11-13742, E.D. Michigan), an employee with irritable bowel syndrome asked to work from home up to four days a week.  Ford ultimately rejected the employee’s request.  Although Ford allowed some employees in the same group to telecommute, those employees worked at home only one day a week, on a prescheduled day.  Also, the employee who made the request had a history of attendance and performance problems, and Ford concluded that working from home that many days per week would not allow the employee to interact with others, as needed to complete her job.  The employee then filed a charge of discrimination with the EEOC.  A few months later, Ford placed the employee on a performance improvement plan for failing to meet certain goals, and then discharged her when she did not successfully complete her improvement plan.  The EEOC later sued Ford for failing to accommodate the employee, and for retaliating against her for filing a charge of discrimination.  The federal district court rejected both claims as a matter of law.

The court noted that the employee was absent more often than she was at work, which meant she was not a “qualified” individual under the ADA.  More importantly, though, the court rejected the EEOC’s argument that Ford should have allowed the employee to telecommute.  Courts typically do not second-guess an employer’s business judgment regarding what job functions are essential.  Here, Ford said that attendance was an essential job function.  In addition, courts generally find that working at home is “rarely a reasonable accommodation.”  In this case, that was especially true because the employee wanted to work from home up to four days per week, choosing what days to work from home at her own discretion; she had frequent and unpredictable absences, which negatively affected her job performance and increased her colleagues’ workload; and her managers did not agree that she could complete her job duties from home.  Therefore, the court concluded that working from home was not a reasonable accommodation in this case.

The court also rejected the EEOC’s retaliation claim.  There was no evidence that Ford’s stated reasons for the employee’s low performance rating and ultimate discharge were “pretextual,” or a cover for unlawful retaliation. 

Lessons Learned

Although Ford prevailed in this case, employers can expect more and more requests from employees to work from home as technological advances make it easier to communicate and complete certain tasks remotely.  Therefore, consider these tips:

  • Review and, if necessary, update your job descriptions to make sure they capture the essential job functions.  If attendance at work is an essential job function, make sure your job description says so, either directly or through a description of other job duties, e.g., employee must regularly interact with managers, customers, and vendors to negotiate sales agreements, etc.
  • If you allow one employee to work from home for a non-medical reason, be aware that doing so might impact your ability to decline a request from an employee who asks to work from home for medical reasons.
  • If you allow someone to work from home temporarily, be sure to document that it is a temporary issue, and that you will monitor and potentially modify the arrangement as needed.
  • If an employee asks to work from home as an accommodation, be sure to engage in the interactive process, e.g., carefully consider the request in light of the employee’s job duties and the organization’s business needs, talk to the employee, and consider other alternatives if working from home is not feasible.
  • If you reject an employee's request to work from home, especially if the request is based on an alleged disability or medical condition, be sure you can support your decision with legitimate, nondiscriminatory and nonretaliatory business reasons.


April 17, 2012

NLRB Notice-Posting Requirement Indefinitely Postponed

Brian M. Mumaugh and Bradford J. Williams have been following the recent developments regarding the rule by the National Labor Relations Board, which required most employers to post a statement of rights under the National Labor Relations Act.  Today the D.C. Circuit granted an emergency motion for relief, which had the effect of enjoining enforcement of the rule.  More information about the D.C. Circuit's ruling and its effect on employers is available by visiting the Colorado Employment Law Blog or clicking here

April 6, 2012

Defense of Discrimination Claims Will Continue to Rise

By Steven M. Gutierrez


Employers continue to face increases in the number of discrimination charges and lawsuits. The EEOC continues to make enforcement in this area a high agency priority. The costs to employers are significant, given the use of wide-ranging subpoenas and discovery requests by the EEOC. Steven Gutierrez discussed the important issue yesterday in a post that is available by visiting

March 6, 2012

Court Upholds NLRB Notice-Posting Requirement, Strikes Down Automatic Sanctions for Failure to Post

By Bradford J. Williams

The U.S. District Court for the District of Columbia issued a highly anticipated ruling last Friday, broadly upholding the National Labor Relations Board's (NLRB's) right to issue a rule requiring most private employers to notify employees of their rights under the National Labor Relations Act (NLRA) by posting a notice. The ruling struck down automatic sanctions for failure to post the required notice, but did not altogether eliminate the possibility that failure to post might constitute an unfair labor practice (ULP) under the NLRA. Absent further Board postponement in light of a likely appeal, or a contrary ruling from a second district court still considering the matter, the notice-posting requirement will go into effect on April 30, 2012.

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. Employers who customarily communicate with employees regarding personnel matters using an intranet or internet site were further required to post the notice prominently on that site. As originally written, the rule provided that failure to post would be deemed an ULP under Section 8(a)(1) of the Act. It further permitted the Board to automatically toll (or stay) the six-month statute of limitations for all ULP actions-not just those arising out of a failure to post-where employers had failed to post the required notice.

In late 2011, the NLRB's final rule was challenged in lawsuits filed in the U.S. District Court for the District of Columbia, and the U.S. District Court for the District of South Carolina. Due in part to this pending litigation, the rule's original November 14, 2011, effective date was initially postponed to January 31, 2012, and then postponed again to April 30, 2012.

Last Friday, Judge Amy Jackson of the U.S. District Court for the District of Columbia issued her ruling in one of the two lawsuits, National Association of Manufacturers v. NLRB, No.11-1629 (ABJ) (D.D.C. March 2, 2012). The judge rejected the plaintiffs' contention that the NLRB had exceeded its authority in promulgating the notice-posting requirement. Finding that Congress had not "unambiguously intended to preclude the Board from promulgating a rule that requires employers to post a notice informing employees of their rights under the Act," she upheld the notice-posting requirement as a valid exercise of the Board's authority under the deferential standard of review applicable to administrative rulemaking.

Despite upholding the notice-posting requirement, Judge Jackson found that the NLRB had also exceeded its authority in automatically deeming all failures to post to be ULPs under the Act. Because Section 8(a)(1) only prohibited employers from "interfer[ing]" with rights guaranteed by the Act, it only prohibited employers from "getting in the way - from doing something that impedes or hampers an employee's exercise of the rights guaranteed by [Section 7] of the statute." The automatic sanction of an ULP for any employer who failed to post would not distinguish between situations in which an employer's failure was intended to or did exert influence over employees' organizational efforts, and those in which an employer merely declined or failed to post the required notice. As such, the judge found that the automatic sanction of an ULP was inconsistent with the Act's plain meaning.

Critically, Judge Jackson noted that her decision did not "prevent the Board from finding that a failure to post constitutes an unfair labor practice in any individual case brought before it." As such, the Board may still determine that any particular failure to post constitutes an ULP, at least assuming it makes specific findings that the failure actually interfered with an employee's exercise of his or her rights.

For similar reasons, Judge Jackson struck down the rule's provision permitting the Board to automatically stay the statute of limitations in any ULP action where the employer had failed to post the required notice. The judge found that the Act provided an unambiguous six-month statute of limitations, and that the rule effectively supplanted this limitations period for a broad class of employers regardless of particular circumstances. Again, she nonetheless observed that, under a well-established common law doctrine, her decision did not "prevent the Board from considering an employer's failure to post the employee rights notice in evaluating a plaintiff's equitable tolling defense in an individual case before it."

Judge Jackson's March 2nd ruling is, for the most part, disappointing for employers. It upholds the notice-posting requirement that will go into effect on April 30th absent further Board postponement, or a contrary ruling in the second pending lawsuit, Chamber of Commerce v. NLRB, D.S.C., No. 11-cv-2516. It further permits the NLRB to find individual failures to post to be ULPs under the Act, at least given appropriate factual findings. Finally, the judge's statute of limitations ruling may expose employers to stale ULP charges where employees succeed in showing that they were unaware of their rights under the NLRA due to an employer's failure to post.

The plaintiffs in National Association of Manufacturers have already vowed to appeal Judge Jackson's ruling. Pending any eventual reversal by the U.S. Court of Appeals for the District of Columbia Circuit, or any contrary ruling by the U.S. District Court for the District of South Carolina, employers are now presumptively required to comply with the rule's notice-posting requirement by April 30th. Employers will consequently need to weigh the possible costs of posting an arguably pro-union poster against the likelihood that Judge Jackson's ruling may eventually be reversed, and additionally consider that failure to post the notice could-but will no longer automatically-result in an ULP or other adverse sanction. For more information or advice on compliance, please contact Bradford J. Williams of Holland & Hart's Labor & Employment Practice Group at (303) 295-8121 or

February 1, 2012

EEOC Releases 2011 Charge Statistics

The EEOC has released statistics relating to charges filed with the agency in 2011. A complete table, including prior years, is available here. The total number of charges remains nearly unchanged from 2010 to 2011. Also significant is the fact that disability related charges remained steady from 2010 at 25,742 for 2011. This is compared to the roughly 25% increase in disability charges from 2009 to 2010.

January 9, 2012

New Year’s Resolution: Be Prepared For 2012 W-2 Reporting Of Cost Of Employee Group Health Coverage


The IRS has issued a New Year's gift in the form of new and improved guidance for employers preparing to gather 2012 data on the cost of employer-sponsored group health coverage for its employees. Most employers will be required to report the cost of group health plan coverage on 2012 Forms W-2 to be issued in January of 2013. Employers may choose to provide this information on a voluntary basis for 2011 reporting. There are some exemptions from this reporting requirement, most notably for employers filing fewer than 250 Forms W-2 in the previous year.

Now is the time to ensure that payroll systems are properly coded to gather the correct information for reporting. This new guidance, IRS Notice 2012-9 (which supersedes IRS Notice 2011-28) clarifies a few points with revisions to Q&As in the previous notice and the addition of new Q&As. Employers should carefully review Notice 2012-9 for information on who must comply, how to comply and clarification of the details of reporting on Form W-2.

Highlights of What's New

An employer is required to report the cost of an employee's group medical coverage on Form W-2. Revised Q&A-19 clarifies that this W-2 reporting requirement does not apply to the cost of coverage under a health flexible spending arrangement if contributions come only from employee salary reduction elections. Revised Q&A-20 clarifies that if a dental or vision plan satisfies the requirements for being excepted benefits for purposes of HIPAA, then its costs are not required to be included in the reported amount.

Eight new Q&As (#32 through 39) were added in Notice 2012-9. The new Q&As provide, among other things, guidance regarding the cost of coverage for wellness programs, employee assistance programs and on-site medical clinics; guidance for reporting the cost of coverage for a payroll period that includes December 31 but continues into the next year; and guidance regarding inclusion of the cost of coverage for a hospital indemnity or other fixed indemnity insurance, or the cost of coverage for a specific disease.

The new guidance should help resolve a few issues, but as is often the case, it might not answer all of your questions. Please contact any member of Holland & Hart's Benefits Law Group for questions regarding this, or any other benefits issue. Happy New Year!