Monthly Archives: May 2022

May 13, 2022

Big Changes at NLRB: Expansion of Section 7 Rights in 2022

David Law

by David S. Law, Holland & Hart, LLP

Under General Counsel (GC) Jennifer Abruzzo’s leadership, the National Labor Relations Board (NLRB) is poised to dramatically expand the definition of “protected concerted activity” under Section 7 of the National Labor Relations Act (NLRA). The Board also intends to take a tougher stance against employer handbook policies. The sweeping changes are likely to have a significant impact on employers in 2022 and beyond.

Redefining ‘concerted activity’

Traditionally, an activity is “concerted” for Section 7 purposes if it is engaged in by (1) two or more employees, (2) one employee authorized to act on coworkers’ behalf, (3) one employee seeking to induce or prepare for group action, or (4) one employee bringing group concerns to management’s attention. Read more >>

May 10, 2022

Can Offer Be Pulled If Job Candidate Won’t Follow Our Vax-or-Test Policy?

David Law

by David S. Law, Holland & Hart, LLP

Question: Our COVID-19 policy calls for vaccination or testing and masking “at all times.” We made a verbal offer to a candidate for a position requiring travel to trade shows, but when she learned about our vaccine-or-test mandate, she objected to sharing her vaccination status. How can we cleanly rescind the offer (which wasn’t in writing) and avoid any issues?

Answer: This is a great question. Before rescinding the offer, you should ask the candidate why she opposes the vaccine-or-test requirement. If her reason for objecting is political or ideological, you can likely rescind the offer with little risk of legal exposure. If, on the other hand, she cites a religious or medical reason, you may be required to work with her to find a reasonable accommodation. Read more >>

May 2, 2022

CDLE Issues New Guidance on Vacation, PTO, and Payroll Deductions

By Mark Wiletsky

Mark Wiletsky

The Colorado Department of Labor and Employment (CDLE) recently provided guidance for Colorado employers on two important issues: payment of vacation and paid time off (PTO) to employees upon separation from employment, and deductions from pay. While these documents are not binding, they represent the CDLEs interpretation of Colorado law and therefore provide helpful guidance to employers.

Vacation, PTO, Floating Holidays, and More. In Nieto v. Clark’s Market, Inc., 2021 CO 48, the Colorado Supreme Court held that employers must pay employees all accrued but unused vacation pay upon separation from employment. Unfortunately, that decision left open some questions for employers, which CDLE addresses in INFO #14, including:

What counts as vacation pay? Basically, any leave that can be used at the employee’s discretion, such as paid time off (PTO), annual leave, personal days, floating holidays, etc. The CDLE explains that “vacation pay” includes any paid leave for which there is no qualifying event. Leave that is based on a qualifying event, such as health needs, a designated public holiday, caretaking, or bereavement, is not considered vacation pay.
Does that mean PTO, annual days, etc. must be paid upon separation from employment? Yes, according to the CDLE. If the paid leave can be used without a qualifying event, then any accrued but unused paid time off must be paid upon separation from employment.
What about a “floating holiday” that can be used for any holiday the employee celebrates? That is not vacation pay, according to the CDLE, because it is tied to a specific qualifying event, e., a holiday the employee celebrates. However a “floating holiday” that can be used completely at the employee’s discretion is vacation pay.
If we do not have a written policy, do we still have to pay accrued but unused vacation upon separation? Yes, if you have a practice of providing vacation or paid time off, it does not matter whether the policy is written.
What about “unlimited vacation” – do we need to pay anything upon separation? No, but the CDLE notes that if the company caps the time off or otherwise does not allow for “unlimited” vacation, then you likely would have to pay any unused vacation upon separation.
Are use-it-or-lose-it policies permissible? No, according to the CDLE. Once employees earn vacation pay (regardless of the name used for such pay), they cannot forfeit such pay. Capping the amount of earned vacation or PTO that rolls over from year to year would amount to a forfeiture. The Colorado Supreme Court did not address this question in Nieto, but the CDLE’s guidance appears to be consistent with the reasoning in Nieto.
Can we cap the amount of vacation pay employees earn? Employers may set a maximum cap at which accrual stops, until such time as the employee falls below that cap.