Hot Topics in Employment Law and New Challenges for Employers

1. Hot Topics in Employment Law and New Challenges for Employers Lawrence D. Stone, Esq. Christian D. Hammond, Esq. Dufford & Brown, P.C. 1700 Broadway, Suite 2100 Denver, CO 80290 (303) 861-8013

2. Overview I. The EEOC Opts for Quality not Quantity. II. It’s a Bull Market for Wage-Hour Litigation. III. The Evolving Demise of Independent Contractors. IV. Reefer Madness. V. The NLRB Flexes its Muscles. VI. Social Media in the Workplace – A New Age is Dawning. VII. The Affordable Care Act’s Impact on Human Resources. VIII. Conclusion.

3. I. The EEOC Opts for Quality Not Quantity A. All Charges Filed Nationally in Fiscal Year 2012.

4. B. EEOC Resolutions by Type in 2012

5. C. All Suits Filed by the EEOC Nationally

6. D. Colorado Federal District Court Verdicts Over the Past 11 Years (2001 – 2012) The 64 cases tried to plaintiffs’ verdicts in the last 11 years have resulted in awards totaling $42,155,409.

7. II. It’s a Bull Market for Wage-Hour Litigation A. Misclassification. B. A salary does not equate to an exempt status. C. Working off-the-clock. D. Work-related communications with employees on unpaid leave. E. Unpaid interns. F. Compensatory time off. G. Mandatory meetings, training, travel time, and “donning and doffing” clothing required for work. H. Improper deductions from salaries. I. Inadequate time records.

8. III. The Evolving Demise of Independent Contractors A. Governmental oversight – D.O.L., UI Division, I.R.S., H.H.S. B. A true independent contractor is a worker who contracts with another to accomplish a result using his/her own methods and who is not subject to the control of the person who engaged him/her. C. General Rule: If an employer controls not only the end result of a worker’s project, but also the means and manner for how the worker will achieve that end result, the worker is likely an employee. But if the employer controls only the end result and has no control over how the worker will achieve that result, the worker is more likely to be an independent contractor. D. Why be concerned? 1. Tax liability. 2. Applicability of wage – hour laws. 3. Applicability of discrimination laws. 4. Tort liability.5. Insurance coverage – liability/workers compensation.6. ERISA liability.

9. III. The Evolving Demise of Independent Contractors D. Common tests applied: 1. Is the worker told where, when, and how to perform the work? 2. Does the company set the hours of work? 3. Does the company supply the tools (computers, cell phones, business cards, etc.) and materials necessary for the work? 4. Does the company determine the sequence of the work? 5. Does the company provide more than minimal training to the worker? 6. Does the company provide benefits such as paid vacation and insurance? 7. Is the worker required to work exclusively for the company? 8. Is the worker required to give regular reports to the company? “Yes” answers tend to favor an employee/employer relationship, rather than an independent contractor/company relationship.

10. IV. Reefer Madness A. Employers are not required to permit or accommodate marijuana in the workplace. B. Amendment 64 states that employers can have policies restricting the use of marijuana by employees. C. Marijuana cannot be consumed openly and publicly. D. Colorado’s “lawful” off-duty activities statute. E. Use or possession of marijuana remains illegal under federal law. F. Uncertainty regarding the legislative implementation of Amendment 64 and the role the federal government will play.

11. V. The NLRB Flexes its Muscles A. Section 7 of the National Labor Relations Act (NLRA). 1. Grants employees the right “to self-organization, to form, join, or assist labor organizations … and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 2. Employers may not “interfere with, restrain, or coerce employees in the exercise of” their Section 7 rights, which apply to both union and nonunion employees and employers.

12. V. The NLRB Flexes its Muscles B. Examples of overbroad policies. 1. “Don’t release confidential guest, team member, or company information.” 2. Policy prohibiting employees from making “disparaging, discriminatory or defamatory comments when discussing the company or the employee’s superiors, co-workers, and/or competitors.” 3.Policy prohibiting employees from “revealing, including through the use of photographs, personal information regarding co-workers, company clients, partners, or customers without their consent.” 4. “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.” Runs afoul of the right to engage in concerted activity to change employee’s at-will status. 5. Encouraging employees not to “friend” co-workers. 6. Requiring employees to report a co-worker’s social media activity. 7. Do not discuss compensation/bonus.

13. V. The NLRB Flexes its Muscles C. Confidentiality of internal investigations. 1. May violate employees’ rights to engage in concerted activities, unless the employer can establish that: a. Witnesses need protection. b. Evidence is in danger of being destroyed. c. Testimony is in danger of being fabricated. 2. The EEOC has taken a similar position.

14. VI. Social Media in the Workplace – a New Age is Dawning A. Employer concerns. 1. Pre-employment – Should employers access social media sites? a. Colorado’s pending legislation – H.B. 13-1046 2. During employment. a. Monitoring employees’ use of social media. b. Employee privacy concerns. c. Employees’ misuse of social media could cause the employer problems relating to hostile work environment, bullying, or discrimination claims; defamation claims; improper disclosure of confidential/proprietary information; and embarrassment to the company. d. Should you discipline employees based on their social media communications? Don’t run afoul of the NLRA!

15. VI. Social Media in the Workplace – a New Age is Dawning 3. Do you need a social media policy? • a. Avoid vague or ambiguous language that may have a “chilling” effect. • b. Acceptable policies: • i. Prohibiting discriminatory comments, unlawful harassment, bullying, and threats of violence. • ii. Prohibiting employees from impersonating the company. • iii. Prohibiting dissemination of trade secrets. • iv. Prohibiting use for personal purposes. • c. Include a “savings” clause.

16. VII. The Affordable Care Act’s Impact on Human Resources Human resource professionals will likely be asked to take part in the following areas: A. Educating employees. B. Determining whether your company has 50 or more full-time equivalent employees. C. If so, determining which current employees must be offered health insurance coverage because they qualify as full-time. D. Determining whether new hires will be full-time or part-time employees. E. Ensuring part-time employees continue to work less than 30 hours per week. F. Working closely with your company’s health insurance provider and/or broker. G. Ensuring that all required disclosures to employees are being made. H. Watching for potential retaliation and whistle-blower issues.

17. VIII. Conclusion Questions? If you have questions about any of these topics, please do not hesitate to contact us as indicated below: Larry Stone (303) 837-6313 lstone@duffordbrown.com Chris Hammond (303) 837-6323 chammond@duffordbrown.com

18. About Dufford & Brown, P.C. • With 25 attorneys, Dufford & Brown is a full-service civil practice law firm founded in 1960. In addition to providing counseling to companies on virtually all aspects of employment law and defending companies in administrative proceedings and lawsuits, Dufford & Brown’s attorneys also represent business and individual clients on corporate formation, securities, real estate, oil & gas, contract review, corporate and general litigation, natural resources, family law, wills and estates, and other legal matters. • For more information about these and other services, please contact our office at: • Dufford & Brown, P.C. • 1700 Broadway, Suite 2100 • Denver, CO 80290-2101 • (303) 861-8013 • www.duffordbrown.com • Thank You!