Colorado Employment Law Blog

Practical Tips for Enforcing Arbitration Agreements

By Mark Wiletsky

  Organizations sometimes require employees to arbitrate claims or disputes that might arise during, or after, the employment relationship.  Individuals typically sign such agreements upon being hired, but they do not always want to comply with them when a dispute arises.  And attorneys representing employees often want to present their case to a jury, not an arbitrator.  Careful planning allows employers to avoid some common traps that result in arbitration agreements being invalidated.  

UPCOMING EVENT: Your Top Talent Walks Out the Door: Now What? - June 9, 2010

As the economy begins to bounce back, many companies are taking advantage of the opportunity to lure away top talent from their competitors. At the same time, entrepreneurial employees are themselves setting up competing businesses on your dime. On top of all of that, when these employees depart, many are taking with them trade secrets and using unlawful techniques to steal away your customers.

Holland & Hart labor and employment partner Steve Gutierrez will discuss the challenges of managing this dilemma during an upcoming complimentary webinar entitled "Your Top Talent Walks Out the Door: Now What?," hosted by the Employment Law Alliance on Wednesday, June 9, 2010 from 1:00-2:30 p.m. MST.

Topics to be covered include:

• Drafting and enforcing restrictions on employee competition when doing business in multiple jurisdictions at one time
• How the “duty of loyalty” can be used to stop your employees from setting up competing businesses while still employed by you.
• What you can do to minimize the risk that your employees will walk out the door with your trade secrets
• How to stop your competitors from engaging in unfair competition

We encourage you to consider attending or having someone from your organization attend this event.

click here to view the program brochure

Maternity Leave Policy

Recent reports from the Bureau of Labor Statistics suggest that more than 60 percent of men and women in the labor force have children under the age of 6.   As a result, employers need to be mindful to create a good maternity leave policy that will assist with employee retention, increased productivity and protect against the risk of a discrimination lawsuit. 

If you are interested in how best to facilitate leave and the return to work of your employees, view the guide published on Inc.com the website for Inc. magazine where my Partner Anthony Hall commented on suggestions that would help any employer navigate the maternity leave minefield.  http://www.inc.com/guides/2010/04/maternity-leave-policy.html#

The Siren Call of "Private Club" Exemptions to Federal Employment Discrimination Statutes

By Steven M. Gutierrez and Brad Williams

Many managers (and human resources employees) of private membership clubs mistakenly believe that “private club” exemptions to various federal employment discrimination statutes permit them to be less punctilious in safeguarding against illegal discrimination in their workforce or in adopting and enforcing strong antidiscrimination policies. Such managers and employees are not only wholly mistaken, but they make such assumptions at their clubs’ significant peril. 

If you do business in the private membership club arena, this article would be of interest.  This article was originally published in the CMAA Premier Club Services Legal Newsletter, July/August/September 2009 edition.  http://www.hollandhart.com/newsitem.cfm?ID=1605

UPCOMING EVENT: Caution Advised: Federal and State Laws Regulating Pre-Employment Screening and Safe Hiring - March 3, 2010

Holland & Hart labor and employment partner Jude Biggs will present on the latest legal issues triggered when conducting pre-employment screening in the United States. The complimentary 90 minute webinar entitled "Caution Advised: Federal and State Laws Regulating Pre-Employment Screening and Safe Hiring", will be hosted by the Employment Law Alliance on Wednesday, March 3, 2010 from 1:00-2:30 p.m. MST. Topics to be covered include:

• Negligent hiring and how to avoid it
• The impact of state laws on background checks
• The pros and cons of using credit report
• Avoiding claims of discrimination when using criminal records and other screening tools
• The pitfalls with using the Internet and social networking sites to screen applicants

We encourage you to consider attending or having someone from your organization attend this event.

Register by following this link:  click here to view the program brochure

Tenth Circuit Affirms that Pattern and Practice Claims are Alive Under the Age Discrimination in Employment Act

By Steven M. Gutierrez

The link below will highlight a recent case out of the 10th Circuit Court of Appeals, Thompson v. Weyerhaeuser Co., --- F.3d ----, 2009 WL 2902069 (10th Cir.)  In Thompson, the 10th Circuit addressed the impact of the United States Supreme Court's ruling in Gross v. FBL Financial Services, 129 S.Ct. 2343 (2009), wherein the Supreme Court rejected the so-called “mixed-motive” theory in age discrimination cases.  It was based upon the holding of Gross that the employer in the Thompson case attempted to argue that "mixed-motive" cases under the Age Discrimination in Employment Act (ADEA) are no longer viable.  The 10th Circuit rejected that argument finding that Gross was inapposite.  For a more detailed discussion of the Thompson case, follow this link:  http://www.hollandhart.com/newsitem.cfm?ID=1606

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. 

Supreme Court to Review Employee Privacy in Text Messages

By Mark Wiletsky

 

Many organizations believe they have the right to monitor employees' activities on their computers and the Internet, including the sites they visit and the content of e-mails they send or receive. Such a belief is understandable:  the equipment is provided for business purposes, and organizations can be held responsible if an employee misuses those resources.  Therefore, organizations ought to have the right to check up on employees and make sure their resources are being used appropriately.  Courts have generally agreed and allowed private employers to monitor employees' use of computers and other technology, at least when there is an explicit policy informing employees that they have no right or expectation of privacy when using their employers' technology.

 

New OSHA National Emphasis Program on Record Keeping

The long awaited OSHA National Emphasis Program (NEP) has been launched.  This new program will send inspectors to industries believed to be under-recording workplace injuries and illnesses.  NEP will ascertain whether recent studies, which have ascertained an under-recording on OSHA 300 logs, are accurate and to correct any under-recorded or incorrectly recorded cases.   For more information, follow this link to view a short article from my partner Jim Goh: 

 

http://www.hollandhart.com/newsitem.cfm?ID=1566