Colorado Employment Law Blog

Employers beware -- Employee Handbooks Should be Reviewed After New Jersey Supreme Court Ruling

The New Jersey Supreme Court, in Stengart v. Loving Care Angecy, Inc., 201 N.J. 300, 990 A.2d 650 (2010), (Stengart-A16-09[1]) held that a nongovernmental employee had a reasonable expectation of privacy in web-based e-mail messages between the employee and her attorneys.  In its analysis, the Court reviewed the employer’s handbook language and found that it failed to reasonably inform the employee that there was no expectation of privacy in password protected web based e-mail messages.  In so doing, the Court rejected the employer’s policy on the grounds that it failed to define whether the “use of personal, password-protected, web-based e-mail accounts via company equipment” was covered by the policy’s express terms.  This holding despite language in the policy that permitted employer access to “all matters on the company’s media systems and services at any time.”  The result of the Court’s conclusion was a determination that the employer’s counsel violated rules of professional conduct by review of attorney-client communications.

Though not adopted by others at this time, its rationale suggest employers should review the language in their handbooks to ensure that the handbooks address this important and rapidly evolving issue.

 

For more information about Steve, please click here: Steven M. Gutierrez

 

United States Supreme Court goes 5-4 to Reverse Ninth Circuit to Allow Arbitrator Rule on Unconscionability

 By Steven M. Gutierrez

The United States Supreme Court was divided 5-4 in Rent-A-Center West Inc. v. Jackson, U.S., No. 09-497, 6/21/10, and held that where an arbitration agreement delegates to an arbitrator authority to determine the enforceability of the agreement, a challenge to that delegation provision is to be resolved by a federal district court, but a challenge to the enforceability of the entire agreement must be resolved by the arbitrator.  If you have contracts that compel arbitrations subject to the Federal Arbitration Act, this decision spells out just how specific of a challenge one must make to contest the arbitrability of contracts.  It is a reminder to be specific in your challenge -- even when it appears that the whole contract was one directed at arbitration of disputes.

In this case, the contract was an employment contract with an agreement to arbitrate any dispute arising out of employment -- including discrimination claims -- but the decision appears to have broad application to all disputes governed by the Federal Arbitration Act.  The decision is consistent with existing Federal law, but the decision demonstrates how meticulous a litigant must be in order to challenge arbitration clause enforceability.  You can look at this case by following this link:  http://www.supremecourt.gov/opinions/09pdf/09-497.pdf

For more information about Steve Gutierrez, please click here.

 

Recent and Upcoming Supreme Court Decisions and Congressional Legislation Affecting the Employment World

 

Recently, my partner & colleague, Jim Goh wrote a chapter for a book published by Thomas Reuters/Aspatore (see http://aspatore.com/), entitled "Employment Law 2010 Top Lawyers on Trends and Key Strategies for the Upcoming Year".

 

Jim's article tells us what we might expect in the area of employment law for 2010 and beyond based upon the current trends and the influence of the Obama White House and the Democrat-controlled Congress.  In addition, Jim discusses how the movement for greatly expanded employee rights might be impacted by the current make up of the United States Supreme Court—with the addition of Chief Justice Roberts and Justice Alito in 2005 and 2006 respectively—and its slim but definitive majority vocally resistant to any perceived encroachment into corporate interests. The substitution of Justice Sotomayor for Justice Souter does not, at least in theory, appear to shake up the pro-business orientation of the court.

 

Jim explains how the first glimpses of the showdown between the pro-business Roberts Court on one side and the employee-leaning Congress and the Obama White House on the other, challenges the U.S. employer.  In order to survive these tumultuous economic times, Jim explains how the nation’s ultimate law deciders and its law makers engage in an incessant tug of war and what is the besieged employer to do. 

 

If you are interested in reading the entire article and the other articles contained in this publication, click on the following:  http://www.hollandhart.com/articles/GohChapter.pdf

 

Steven M. Gutierrez

2010 Hospitality Law Conference

Wednesday-Friday, February 3-5, 2010

Omni Houston Hotel
Four Riverway
Houston, Texas 77056
(713) 871-8181

Holland & Hart partner Steve Gutierrez to speak at the eighth annual Hospitality Law Conference in Houston, TX, February 3-5th, 2010. Mr. Gutierrez will speak about the high-stakes world of unfair business practices and theft of trade secrets. He will discuss how companies need to be mindful of how technology as well as other factors have made it easy to take proprietary and other confidential information. He will use the case of Starwood v. Hilton as an example of how important it is for a company to have basic protections in place to decrease the potential for catastrophic damage that can result by such unlawful activity. 

Additionally, Mr. Gutierrez will speak on how the so-called pushing down of new technology to non-exempt employees has created a new wave of legal liability for Fair Labor Standards Act violations similar to the claims faced in the past when pagers and on-call time were implemented. The sticky issues that surround FLSA compliance will undoubtedly continue to plague employers who unwittingly allow non-exempt employees to work beyond the 40 hour work week. 

Who should attend: HR executives, In House Counsel, Executives within the Hospitality Industry

Click here for a full agenda.

Click here for a more information and to register.

City of Denver Faces Medical Pot Issue

As reported by Brian Maass, with CBS4 in Denver, a Denver Department of Safety employee has made claim that he cannot be disciplined by the City of Denver for getting into an on-duty automobile accident. (http://cbs4denver.com/investigates/medical.marijuana.denver.2.1441725.html)  Increasingly, states with medical marijuana statutes will be asked whether employers have a duty to accommodate employees' use of medical marijuana.

As my partner, Tobie Hazard, indicated in his article, "The Straight Dope on Medical Marijuana in Colorado," (http://www.hollandhart.com/newsitem.cfm?ID=1557) Colorado's medical marijuana law specifically states that nothing in the medical marijuana law “requires any employer to accommodate the medical use of marijuana in any work place.” Therefore, employers have the the right to prevent employees from smoking pot at work, regardless of whether the employee holds a medical marijuana card. 

 

Follow the link above to read Brian Maass' report, and please click the video link showing the medical marijuana card to see my colleague Emily Hobbs-Wright comment on the case and respond to Mr. Maass.  It will be interesting to see how the City of Denver addresses this challenge. 

Medical Marijuana -- Do you want the Straight Dope?

Amendment 20, passed by Colorado voters in November 2000, authorized the use of medical marijuana for people who suffered from specific debilitating conditions.  But the law has been very controversial and several key legislators, including Colorado State Senator Chris Romer, have recently talked about new legislation to clarify the law. 

As noted in a recent article in the Colorado Springs Gazette (http://www.gazette.com/articles/warns-89680-laws-california.html), even authorities in California have some advice for Colorado legislators -- "[m]ake your laws as clear as you can, so that your executive and judicial branches of government can do their jobs as they are intended to," says Randy Mendosa, Chief of Police in Arcata, California.

For employers, there has been uncertainty about what obligations exists when an employee presents a medical marijuana card at work.  For the straight dope on medical marijuana in Colorado, check out this article by my partner Tobie Hazard. 

Cick here:  http://www.hollandhart.com/newsitem.cfm?ID=1557

Employment Law Regulation Expanding

My partner John Husband was quoted in the Denver Business Journal discussing how expanding regulations are driving the focus of employment and labor law.  As he notes in the article, the specialty practice of labor and employment litigation is driven by an ever-expanding body of regulation, which creates a growing demand for attorneys in the field.  There are two segments of the specialty, and each has legislation either recently approved or pending that will dramatically change the rules of engagement.  In the employment law area, just check out the Lilly Ledbetter Fair Pay Act of 2009, passed by Congress in response to the Supreme Court's ruling in Ledbetter v. Goodyear Tire & Rubber.  As for Labor, the Employee Free Choice Act is still on the horizon. 

You can link to the Denver Business Journal article by following this link.  Click here to read more.  You can also connect to my article on the Employee Free Choice Act by clicking http://www.coloradoemploymentlawblog.com/colorado_employment_law_b/2009/04/the-employee-free-choice-act.html

H1N1 Pandemic – Are You Prepared?

By Jane O. Francis and Steven M. Gutierrez

In light of the potential H1N1 pandemic, all employers should consider taking a few simple steps to prepare for the possible disruption to their business. Just how many workers will become infected with H1N1 is unknown, but the impact to business could be significant if large numbers of employees (or their children or elderly parents) become sick around the same time.

Tips for Minimizing Risk When Cutting Labor Costs

By Mark Wiletsky

          Although we are beginning to see signs of an economic recovery, many organizations are still grappling with how to stay competitive in this challenging environment.  Layoffs, furloughs, and other methods used to cut personnel costs are often part of the equation.  But the savings gained by these cost-cutting measures can be lost if employees later sue the company and embroil the company in expensive litigation.  The good news is that organizations can often avoid turning cost-cutting measures into expensive headaches by avoiding these four common mistakes in reducing personnel costs.

 

COURT CLARIFIES INDEPENDENT CONTRACTOR TEST

By Mark Wiletsky

          Organizations sometimes hire independent contractors, instead of employees, to perform various tasks.  Such arrangements avoid the costly payroll taxes, paperwork, and other benefits associated with employees.  But determining who truly fits the definition of an “independent contractor” is not always easy because there is no uniform or bright-line test.  And the consequences for misclassifying someone as a contractor, even if the mistake is unintentional, can be severe.  A recent case from the Colorado Court of Appeals sheds some much needed light on this area, providing important lessons and guidance for companies that hire independent contractors.