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 >>

August 12, 2016

Notice Required By Colorado’s New Pregnancy Accommodation Law

By Besse H. McDonaldDORA notice

As we reported here, effective August 10, 2016, Colorado employers must provide a reasonable accommodation to applicants and employees for health conditions related to pregnancy or physical recovery from childbirth, absent an undue hardship. Along with the new accommodation requirement, Colorado employers also must post a notice of employee rights under the new law as well as provide written notice to new hires at the start of employment and existing employees no later than December 8, 2016. The Colorado Civil Rights Division (CCRD) has published a suggested notice that it deems compliant with the new law.

Available in both English and Spanish on the CCRD’s website, the two-page notice informs employees of the new pregnancy accommodation requirement under Colorado’s anti-discrimination laws. Be sure to print off copies of the notice to post in a conspicuous place in your business in an area accessible to employees, such as break rooms or near employee entrances, where other required employment law notices are posted. Then take steps to provide the notice to your existing employees no later than December 8, 2016 and to all new hires going forward.

August 21, 2014

MSHA Proposes to Amend Civil Penalty Regulation

By Cole Wist and Matthew Linton

Wist_CWith the stated goals of improving the civil penalty process and reducing the number of contested citations, the Mine Safety and Health Administration (MSHA) has proposed a rule to amend its civil penalty provisions (30 C.F.R. Part 100).  If finalized, the proposal will impact mine operators significantly.  Although the existing minimum and maximum penalties for non-flagrant violations would not change, minimum penalties for “unwarrantable failure” violations would increase by 50%.  Further, as discussed below, the proposed rule would place significant limits on judicial review of assessed penalties. 

Linton_MPenalty Criteria Revised

Established pursuant to the Federal Mine Safety and Health Act of 1977, six criteria are currently used for determining civil penalties for violations of safety and health standards in mining operations.  MSHA’s proposed rule would change the relative weight given to certain criteria in order to weigh more egregious operator conduct more heavily.  Highlights of the proposed changes to the six criteria and the relative weight attributed to each are as follows:

  • Negligence of the Operator.  The number of descriptive categories for operator negligence to be used by inspectors will be reduced from five (No Negligence, Low Negligence, Moderate Negligence, High Negligence and Reckless Disregard) to three (Not Negligent, Negligent and Reckless Disregard).  The definition of “negligence” will read “[t]he operator knew or should have known about the violative condition or practice.” In addition, the relative weight of Negligence will increase in the penalty computation.
  • Gravity of the Violation.  The number of categories that inspectors currently use for the three aspects of Gravity (Likelihood of Occurrence, Severity of Injury or Illness and Persons Affected) will also be reduced.  For example,  the current five categories of Likelihood would be reduced to three: Unlikely, Reasonably Likely and Occurred.  The existing categories of No Likelihood and Highly Likely would be eliminated.  As for Severity of Injury or Illness, the existing category of Permanently Disabling will be dropped, leaving three categories: No Lost Workdays, Lost Workdays or Restricted Duty and Fatal.  In addition, the relative weight of Severity will also increase in the penalty computation. 
  • Operator’s History of Violations.  The relative weight of violation history will increase as a percentage of total penalty points.  The manner in which violation history is determined will be revised to more equitably impact the Violations per Inspection Day formula for small metal/nonmetal mines.  The proposed rule clarifies that repeat violations apply only after (1) a mine operator has 10 or more violations that become final orders, more than 10 inspection days and six repeat violations of the same citable provision of a standard which become final orders, over a 15-month period; or (2) an independent contractor has a 6 or more violations at all mines which become final orders and 6 repeat violations of the same citable provision of a standard which become final orders, over a 15-month period.
  • Appropriateness of the Penalty to the Size of the Business.  This criteria will have less weight as a percentage of total penalty points.  The proposal will reduce the penalty points for mine size and controlling entity and decrease the number of penalty points for operators and independent contractors.
  • Demonstrated Good Faith of the Operator in Attempting to Achieve Rapid Compliance After Notification of a Violation. The proposed rule will provide an additional 20% good faith penalty reduction to mine operators that do not contest a citation, promptly correct the condition or practice that was cited and pay the civil penalty.
  • Effect of the Penalty on the Mine Operator’s Ability to Continue in Business.  This criteria will not substantively change as MSHA will continue to assume that the assessment of a civil penalty will not affect the ability of the mine operator to continue operations.  Operators may continue to submit information regarding its financial status to the District Manager.

Penalty Amounts – Only Minimum Penalties for Unwarrantable Failure Violations Will Increase

The civil penalties for non-flagrant violations will remain the same, with the minimum penalty of $112 and the maximum penalty of $70,000.  In order to deter mine operators from allowing unwarrantable failure violations to occur, the proposed rule will increase the minimum penalties for such violations by 50% to $3,000 under Section 104(d)(1) and $6,000 under Section 104(d)(2).

ALJ Review of Contested Cases to Be Limited

One of the most significant changes proposed in the new rule is that Federal Mine Safety and Health Review Commission administrative law judges (ALJs) who hear contested violations and penalty cases will have less independence in evaluating the appropriateness of MSHA’s proposed penalty assessments.  The rule provides limited circumstances under which an ALJ may assess a penalty other than that indicated by MSHA’s regular formula.  The stated goal of this change is to promote greater consistency and predictability.  However, because the Commission’s scope of authority and review process was created by statute, this proposed changed is highly controversial and will likely attract significant scrutiny. 

Comment Period Open Until September 29, 2014

Interested parties may submit comments about MSHA’s proposed rule no later than midnight on September 29, 2014.  Please contact the Holland & Hart Workplace Safety / Emergency Response attorney with whom you regularly work to obtain more information.  Comments may be submitted by email to: (include “RIN 1219-AB72” in the subject line).  Those that wish to comment by facsimile, U.S. mail or by courier may find instructions at

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.
Pamela Howland
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Ms. Howland has experience with a wide range of civil litigation matters including contract, finance, and employment disputes, as well as cases involving tort law.
For more information about Pam Howland, please visit her 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.
Scott Randolph
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Mr. Randolph’s practice involves virtually all aspects of commercial litigation, with an emphasis on complex commercial and employment litigation.
For more information about Scott Randolph, please visit his 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.

January 4, 2013

OFCCP Says April 2013 for Final Veterans and Disabled Regulations

by Chris Chrisbens

The Department of Labor recently released its fall 2012 Regulatory Agenda, including the agenda of the Office of Federal Contract Compliance Programs (OFCCP).  Chief among the OFCCP’s projections is the publication of final regulations governing affirmative action for veterans and the disabled in April 2013

In April and December 2011, OFCCP caused tremendous ongoing clamor in the federal contractor community when it issued proposed regulations significantly increasing documentation, data collection, recordkeeping and other requirements concerning veteran and disabled affirmative action.  Federal contractors subsequently provided critical comments and since then, OFCCP has left federal contractors hanging in doubt and turmoil for over a year.  In April 2012, the U.S. House of Representatives Subcommittee on Health, Employment, Labor, and Pensions conducted a hearing
concerning the proposed regulations where three of four witnesses described them as "extraordinarily” burdensome and lamented the “staggering” financial burden of compliance. 

While it remains to be seen whether the critical comments impact the final regulations, and whether OFCCP meets the April 2013 projection, it is clear from the outcome of the presidential election, and now the Regulatory Agenda, that some form of the regulations will soon take effect.  Given the additional burdens any version of the final regulations is likely to impose, it would be wise to
become familiar with the proposed regulations as they stand today, as well as assess existing systems, processes and procedures (particularly applicant tracking and outreach efforts) in light of the proposals.    

Probably the most notable proposals are the goal and benchmarks:  (1) a 7% utilization goal per job group for employees with disabilities; and (2) an annual hiring benchmark for protected veterans expressed as the “percentage of total hires who are protected veterans that the contractor seeks to hire in the following year.”  Contractors will set their own veteran hiring benchmarks based on a documented analysis of a number of veteran availability statistics, some provided by OFCCP and some based on data contractors will be required to collect and maintain, including a veteran referral
ratio, applicant ratio, and hiring ratio for the previous year. 

In order to collect that data, contractors will for the first time invite applicants to self-identify as a “protected veteran” and/or as a person with a disability on an OFCCP-approved form.  Contractors will continue to invite new hires to identify membership in a specific “protected veteran” category, and to identify a specific disability, also on an OFCCP-approved form.  Contractors will also conduct an annual, anonymous survey of employees inviting them to identify as a person with a

A major emphasis of the proposed regulations is requiring contractors to take specific steps to fulfill their existing affirmative action obligations, document their efforts, and include such documentation as part of their written affirmative action plan (AAP). This change will affect the review of personnel processes and job qualifications; outreach and recruitment efforts; internal dissemination of the
policy; the audit and reporting system; and the training of all personnel involved in affirmative action. 

Another controversial and onerous new proposal is the requirement that contractors develop detailed, written accommodation procedures which would be included in the AAP.  Contractors would be required to distribute the procedures to all employees, train managers and supervisors on the procedures, and notify applicants of accommodation procedures regarding the application process. 

In addition, the procedures would need to contain specific elements too numerous to list here.   For
instance, a request for accommodation may be written or oral and could be made by a third party; a request could be made to any supervisor or manager in the employee’s chain of command; contractor’s must provide written acknowledgement of receipt of a request; a response deadline of 10 business days or 30 calendar days depending on whether medical documentation is needed; and written notice of any denial detailing the reasons and notifying the requester of her right to
file a complaint with OFCCP. 

While the OFCCP will no doubt give federal contractors time to prepare before the final veterans and disabled regulations take effect, some advanced knowledge and organization will not only enhance success in meeting your current obligations but will also help you avoid pitfalls when the final
regulations land on your desk with a thud.  

For assistance with affirmative action planning and OFCCP compliance, please contact Chris Chrisbens.  Please also look for Holland & Hart briefing sessions once the final regulations are published. 

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