Colorado Employment Law Blog

Holland & Hart’s Labor & Employment Group Receives 2011-12 U.S. News - Best Lawyers "Best Law Firms"® Rankings

I am very proud of this, so I had to post.  

Holland & Hart's Labor & Employment Group is proud to announce that, among the top-rated Holland & Hart practices for 2011-12, we received the following "Best Law Firms"® Rankings:

• National Ranking  - Tier 2 – Employment Law – Management
• National Ranking  - Tier 2 – Labor Law – Management
• Metropolitan Ranking for Billings, MT – Tier 1 – Employment Law – Management
• Metropolitan Ranking for Billings, MT – Tier 1 – Labor Law – Management
• Metropolitan Ranking for Billings, MT – Tier 1 – Litigation – Labor & Employment
• Metropolitan Ranking for Cheyenne, WY – Tier 1 – Employment Law – Management
• Metropolitan Ranking for Cheyenne, WY – Tier 1 – Labor Law – Management
• Metropolitan Ranking for Colorado – Tier 1 – Employment Law – Management
• Metropolitan Ranking for Colorado – Tier 1 – Labor Law – Management
• Metropolitan Ranking for Colorado – Tier 1 – Litigation – Labor & Employment
• Metropolitan Ranking for Utah – Tier 1 – Employment Law – Management
• Metropolitan Ranking for Utah – Tier 1 – Litigation – Labor & Employment
• Metropolitan Ranking for Idaho – Tier 2 – Litigation – Labor & Employment
• Metropolitan Ranking for Utah – Tier 2 – Labor Law – Management

Holland & Hart LLP is listed among the top 20 firms in the nation based on number of first-tier metropolitan rankings by U.S.News & World Report and Best Lawyers®, one of the oldest and most respected peer-review publications in the legal profession.

Nearly 10,000 firms nationwide received rankings in the second year of "Best Law Firms." A complete list of Holland & Hart's rankings for 2011-12 can be found here.

NLRB Postpones Posting Rule

Good news.  The NLRB (National Labor Relations Board) has postponed the effective date on the private business posting rule that informs workers about their right to form a union.  The Board indicated on Wednesday that there has been too much confusion over which business are covered under the rule.  For a good summary of the posting rule from my partner Jeff Johnson click on this link:  http://www.hollandhart.com/newsitem.cfm?ID=1873

For more information, feel free to reach out. 

Steven M. Gutierrez

Employee Misclassification

Secretary of Labor Hilda L. Solis announced at a ceremony on September 19, 2011 that DOL's Wage and Hour Division, IRS, and agency leaders from Connecticut, Maryland, Massachusetts, Minnesota, Missouri, Utah, and Washington signed memoranda of understanding to improve efforts to combat the business practice of misclassifying employees in order to avoid providing employment protections, i.e. paying payroll taxes, workers' compensation expenses, and other benefits.

The memoranda of understanding will enable the federal Labor Department to share information and coordinate law enforcement with the IRS and participating states to level the playing field for law-abiding employers and to ensure that employees receive the protections to which they are entitled under federal and state law.  The agreements are intended to send a coordinated message that DOL and the IRS have a new partnership. 

See http://www.dol.gov/opa/media/press/whd/WHD20111373.htm

Rehab and One Month of Sobriety Not Enough to be Considered Safe

By Jude Biggs

We all know all too well that illegal drug use and alcoholism cause terrific problems in the workplace, for the addict employee, co-employees and the business.  We know that addiction is a medical problem that can sometimes be treated with success.  Balancing the needs of the business and hope for the employee’s recovery can be tricky to say the least.

A recent case from the Tenth Circuit, which interprets the ADA for Colorado employers, illustrates the difficult balancing that occurs under the law.  The ADA does not protect current illegal drug users, but it provides a safe harbor for those who have successfully completed a drug rehabilitation program (or otherwise rehabilitated successfully) and are “currently” or no longer engaging in the use of illegal drugs.  But what does it mean to be “currently” free of illegal drugs?  Read on to understand how to deal with employees who have used illegal drugs in the recent past.

Court Ruling Strengthens Noncompetes in Colorado

My colleague Alyssa Yatsko has sound advice for Colorado employers that worry about the enforceability of noncompetition covenants.  Thankfully, the Colorado Supreme Court has determined that continued employment does constitute sufficient consideration to support a noncompete agreement.  For a more detailed analysis of the importance of the Colorado Supreme Court’s decision in Lucht’s Concrete Plumbing, Inc. v. Horner follow this link to Alyssa’s article:  Lucht analysis. 

For more information, please feel free to reach out to Alyssa Yatsko.

Newspaper Loses Arbitration Argument, but Can Hold Employee to His Word

By Jude Biggs

Introduction

Unionized employees file grievances when they believe their employer has not followed the collective bargaining agreement (CBA”); usually such an employee argues the employer did not have “just cause” to discipline, demote, or fire him.  If the grievance is not decided in favor of the employee, the employee can take the grievance to arbitration.  In most cases, however, union employees need not grieve or arbitrate their statutory discrimination claims; they still have a right outside of the CBA to claim discrimination, just as a non-union employee does, so they can still litigate the claim in court.  In 2009, the Supreme Court muddied the waters and said some CBAs may be worded clearly enough that a union employee may only arbitrate a discrimination or retaliation claim through the CBA process.  Since then, courts have attempted to sort out just what “clearly enough” means.  Courts have also struggled with what to do when an employee says he is disabled when he applies for social security benefits, but then claims he was qualified for a job and should be allowed to sue for discrimination.  The following case is the latest word from the Tenth Circuit on both of these issues.

Supreme Court Upholds Arizona's Mandatory E-Verify Law

By Roger Tsai

May 27, 2011

Yesterday the U.S. Supreme Court upheld the Legal Arizona Workers Act, which requires employers in that state to use E-Verify, an online tool employers can use to verify the immigration status of new hires. The Arizona law also allows state authorities to suspend or revoke employer business licenses for knowingly employing undocumented immigrant workers. 

YOU JUST MIGHT FIND . . . YOU GET WHAT YOU NEED – A PRACTICAL GUIDE TO FINDING AND MANAGING DISABILITY ACCOMMODATIONS

By John M. Husband and Bradford J. Williams

After two decades of fairly predictable defense verdicts premised upon threshold coverage issues under the Americans with Disabilities Act (“ADA”), the Americans with Disabilities Amendments Act of 2008 (“ADAAA”) has upended the playing field.  With the ADAAA, proposed regulations, and emergent case law now defining “disability” into virtual irrelevance, the battleground for disability discrimination claims has shifted to the issues of: (1) “qualified individual” with a disability; (2) “reasonable accommodation” and “undue hardship;” and (3) the motivation behind challenged employment actions.

A recent paper prepared for the American Bar Association’s 4th Annual Section of Labor & Employment Law Conference by Holland & Hart attorneys John M. Husband and Bradford J. Williams outlines the nature and scope of the ADA’s coverage and protections; surveys changes made by the ADAAA, proposed regulations, and emergent case law; and describes innovative methods employers are using to facilitate the interactive process.  The paper also highlights specific coverage and accommodation issues arising in the context of mental impairments.

To read the paper, please visit: http://www.hollandhart.com/articles/YouJustMightFindYouGetWhatYouNeed.pdf.

For more information about the authors, please visit:  John Husband or Bradford J. Williams

Hiring Mistakes

Over the years, I have heard a familiar theme from clients who face lawsuits filed by former employees.  Many have expressed to me that the biggest mistake made was hiring the employee in the first place.  While this may be a true expression of a client's feelings, usually there are a lot of mistakes that were made during the tenure of the employee.  Nevertheless, I have looked at the hiring process in a number of cases.  I believe with greater focus, a business can increase the likelihood of success in hiring by being aware of certain mistakes.  Recently, my colleague Joe Neguse and I did a webinar for HospitalityLawyer.com.  An article summarizing that presentation, authored by Patrick Mayock from HotelNewsNow.com, can be found by following this link:  http://www.hotelnewsnow.com/Articles.aspx/5150/9-hotel-hiring-mistakes-and-how-to-avoid-them

For more information, feel free to reach out to me Steven M. Gutierrez or Joseph D. Neguse

DIABETES EPIDEMIC 2011: UNDERSTANDING THE IMPACTS THIS DISEASE CAN HAVE ON BOTH YOUR CUSTOMERS AND YOUR WORKFORCE

By Pam Howland

        Chances are, you have heard the shocking statistics: over 23 million Americans (one in ten U.S. adults) suffer from some form of diabetes.  Fast forward to 2050, and as many as 1 in 3 adults are predicted to suffer from Type II diabetes alone.  In fact, the odds are high that you already employ individuals diagnosed with diabetes and that you have customers who grapple with this disease on a daily basis.  As a club manager, if you have not taken the time to familiarize yourself with this chronic disease and the impacts it may have on your customers, employees, and your business, then now is the time.