Author Archives: admin

October 2, 2023

SEC Settlement A Reminder for Employers: Review Your Separation Agreements

by Mark Wiletsky

Mark Wiletsky

Mark Wiletsky

Companies routinely use separation agreements with departing employees.  Through those agreements, the employee receives some type of separation benefit (typically a payment or severance), and in exchange the employee waives and releases any potential claims against the company.  The goal is to avoid an existing or potential dispute, claim, or lawsuit.  But if companies do not routinely review and update those agreements, they risk the agreement being challenged or invalidated.  Even worse, companies are sometimes investigated and forced to pay fines or penalties for provisions in these agreements.  A recent settlement announced by the Securities and Exchange Commission (SEC) provides a strong reminder to employees to regularly review and update agreements used with employees.    

The Facts

On September 19, 2023, the SEC announced a settlement with a real estate services firm.  According to the announcement, the company violated the SEC’s whistleblower protection rule with separation agreements it used between 2011 and 2022.  The agreements contained a common provision: employees had to affirm that they had not filed a complaint about the company with any state or federal court or local, state, or federal agency.  These types of representations are typically included in separation or settlement agreements to ensure that any pending complaint or charge is resolved in conjunction with the separation or settlement agreement. Read more >>

September 28, 2023

Worship in the Workplace and Reasonable Accommodations

Mark Wiletsky

Mark Wiletsky

by Mark Wiletsky

Question: Do employers need to provide a space for employees to worship and/or pray in the office?

Answer: The short answer is: Maybe.  Employers must reasonably accommodate employees’ sincerely held religious, ethical, or moral beliefs or practices unless doing so would impose an undue hardship.  For decades, courts held that employers could deny such requests under Title VII of the Civil Rights Act of 1964 if the accommodation would impose more than a “de minimis” cost or burden.  In June 2023, however, the U.S. Supreme Court “clarified” that standard.  In Groff v. DeJoy, the Supreme Court held that employers can deny requests for religious accommodation only if the accommodation would result in “substantial increased costs in relation to the conduct of [an employer’s] particular business.”  The Equal Employment Opportunity Commission (EEOC) has provided similar guidance, stating that employers should not try to suppress all religious expression in the workplace. Read more >>

September 27, 2023

What Can Employers Do When Employee Threats Are Related To a Disability?

Jordan Walsh

By Jordan Walsh

The Americans with Disabilities Act (the “ADA”) generally prohibits employers from taking adverse employment actions against an employee because of the employee’s disability. To challenge an employment action under the ADA, a plaintiff must show that (1) she is disabled within the meaning of the ADA; (2) she is qualified for her position, even with her disability, with or without a reasonable accommodation; and (3) she suffered an adverse employment action because of her disability. See Mayo v. PCC Structurals, Inc., 795 F.3d 941, 944 (9th Cir. 2015).  If this showing is made, the burden shifts to the employer to present a legitimate, nondiscriminatory reason for the employment action. See Curley v. City of North Las Vegas, 772 F.3d 629, 632 (9th Cir. 2014). If the burden is met the plaintiff must establish that the employer’s reason for the adverse employment action was pretextual. See id. Read more >>

February 23, 2023

NLRB Changes the Game for Confidentiality Provisions in Severance Agreements

By Greg Saylin, Steven Suflas, Tyson Horrocks, Brit Merrill, and Kody Condos

This week, the National Labor Relations Board (NLRB or “Board”) issued a decision that could significantly shape the terms of severance agreements with departing employees. Under this decision, all employers are prohibited from including provisions that prohibit disparagement of the employer or prevent the employee from discussing the terms of the agreement. However, the opinion is certain to be challenged in the federal appellate courts.

Often, non-unionized employers do not think the National Labor Relations Act (NLRA or “the Act”) applies to them. However, that is not true. Section 7 of the Act guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Read more >>

December 8, 2022

H-1B FAQs

Sarah Bileti

By Sarah Bileti

1. When is an employer required to file an H-1B amendment petition for a foreign worker?

A: An H-1B amendment petition is required when there is a material change in the terms and conditions of authorized employment.  What constitutes a material change is not explicitly defined by statute, but the United States Administrative Appeals Office (AAO) held in its precedent decision, Matter of Simeio Solutions, LLC that a change in work location that would require the filing of a new Labor Condition Application (LCA) constitutes a material change requiring the filing of an amended H-1B petition.  A new LCA is required for a change in work location that is outside the Metropolitan Statistical Area (MSA), or normal commuting distance, of the work location listed in the original petition.  In addition to changes in work location, other material changes prompting an amended H-1B petition may include significant changes in job duties and reductions in salary or hours. Read more >>

December 6, 2022

What Employers Should Know about Remote Work if they Employ Foreign Nationals

Sarah Bileti

By Sarah Bileti

According to a new report from the U.S. Bureau of Labor Statistics, approximately 34 percent of private-sector employers expanded remote-work options for workers during the COVID-19 pandemic, and about 60 percent of those organizations intend to keep those policies in place going forward.

While this is good news for many employees, for employers it brings added complication to the already complex immigration processes they must undertake to sponsor foreign workers for temporary and permanent employment in the U.S.  Read more >>

December 5, 2022

Can An Employee Be Required to Sign a Noncompete Agreement Before They Receive Their Final Paycheck?

Juan Obregon

By Juan Obregon

Question: Can we require an employee to sign a noncompete agreement before they receive their final paycheck?

Answer: In short: no, employers cannot withhold an employee’s final paycheck until they sign a non-compete. Doing so likely violates Colorado’s restrictive covenant statute (Colo. Rev. Stat. 8-2-113) and the Colorado Wage Claim Act (Colo. Rev. Stat. 8-4-101, et seq).

Under Section 8-4-109 of the Colorado Wage Claim Act, when the employer terminates an employee, “wages or compensation for labor or service earned, vested, determinable, and unpaid at the time of such discharge is due and payable immediately.” When an employee quits “the wages or compensation shall become due and payable upon the next regular payday.” Either way, if the employee performed the labor to earn those wages, they are due and failing to pay it timely could subject the employer to significant penalties. Read more >>

December 1, 2022

New Guidance on Bonuses and Commissions May Cause Headaches for Employers

Juan Obregon

By Juan Obregon

Organizations commonly require employees to be employed on the date a commission or bonus is paid to receive the commission or bonus. The Colorado Department of Labor and Employment (CDLE), which interprets and administers Colorado’s Wage Act, recently indicated that practice is not permissible, which means employers will need to revisit their bonus agreements and commission plans sooner rather than later. The failure to heed the CDLE’s guidance may result in costly wage claims. 

Overview

The Colorado Wage Act requires employers to pay employees the wages and other compensation they earn. Non-discretionary bonuses and commissions are considered wages. Under the Colorado Wage Act, an employee is not entitled to wages or compensation unless such amounts are “earned, vested, and determinable.” The question, of course, is: when are bonuses or commissions earned, vested, and determinable? Read more >>

minimum wage

November 28, 2022

Ballot Question 2’s Passing Negates Nevada’s Two-Tier Minimum Wage

By Dora Lane

Dora Lane

Effective July 1, 2024, Nevada’s two-tier minimum wage will no longer exist as a result of Ballot Question 2’s passing on November 8, 2022.

By way of background, in 2006, Nevada voters approved a two-tier minimum wage system applicable to employees subject to minimum wage requirements. Since then, Nevada’s minimum wage has increased over time. As of July 1, 2022, the minimum wage is $9.50/hour for employees who are provided qualifying health benefits and $10.50/hour for employees who are not provided qualifying health benefits. Nevada Assembly Bill 456, which passed in 2019, mandated that the applicable minimum wage rates rise gradually until 2024 when they would reach $11/hour and $12/hour for the respective employee tiers. Read more >>