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July 26, 2021

Nevada Legislative Update 2021

Dora Lane

Similar to 2019, in 2021, the Nevada Legislature passed several bills implicating employment issues for both private and public employers. High level summaries of the relevant provisions of these bills and their effective dates are set forth below.

AJR 10 – Constitutional Minimum Wage Amendment

Myrra Dvorak

AJR 10 proposes to amend the Nevada Constitution, which currently establishes a 2-tier minimum wage system, allowing employers who provide qualifying health benefits to pay employees the lower tier minimum wage. The Nevada Constitution also presently provides for annual minimum wage adjustments based on increases in the federal minimum wage or, if greater, by the cumulative increase in the cost of living measured by the Consumer Price Index (“CPI”), subject to a 3 percent CPI adjustment cap.

If approved by the voters in 2022, AJR 10 would eliminate the two-tier minimum wage system and establish a $12/hour minimum wage for all employers (regardless of whether they provide qualifying health benefits), beginning July 1, 2024. AJR 10 would also eliminate the annual CPI increase and provide for increases in the Nevada minimum wages corresponding to any increases in the federal minimum wage above $12/hour. Finally, AJR 10 would expressly allow the Nevada Legislature to establish a minimum wage greater than $12/hour.

The resolution passed the 2019 and 2021 legislative sessions and will be placed on the 2022 ballot for voter approval. Read more >>

June 25, 2021

Pay Up: Colorado Supreme Court Clarifies Vacation Payout Obligations

By Steve Gutierrez

Steven Gutierrez

Colorado law has long been unsettled as to whether employers must pay out accrued but unused vacation time at separation of employment where the employer’s vacation policy recites that vacation time need not be paid out at separation (e.g., because certain conditions, like voluntary separation, or the employee’s provision of two weeks’ notice, are not satisfied). But no longer. The Colorado Supreme Court decided a case on June 14, 2021, addressing this issue head-on, and held that “all earned and determinable vacation pay must be paid upon separation and that any agreement purporting to forfeit earned vacation is void.” The Supreme Court’s decision also appears to invalidate “use-it-or-lose-it” vacation policies in Colorado going forward.

Background on Nieto v. Clark’s Market

The Supreme Court’s decision arose from the case of Nieto v. Clark’s Market, in which an employer declined to pay an employee’s accrued but unused vacation time at separation of employment because the employee had been discharged, and the employer’s vacation policy provided that, “[i]f you are discharged for any reason or do not give proper notice, you will forfeit all earned vacation pay benefits.” The employer argued that the terms of this vacation policy controlled whether accrued but unused vacation time must be paid out at separation of employment, and the employee argued that, under the Colorado Wage Claim Act (“CWCA”), vacation time which is earned and determinable must always be paid out at separation – regardless of what the employer’s vacation policy says about such payout. Read more >>

June 23, 2021

How to Legally Focus on Diversity, Equity and Inclusion in the Workplace

By Bryan Benard

June brings the confluence of Pride Month as well as the newly minted federal holiday, Juneteenth. Over the last few years, as social justice issues have been at the forefront, many companies have published statements or made pledges committing support to such important topics and issues.

The struggle for employers has always been turning words into action, in a fair, supportive, helpful, and legal way. There are potential pitfalls for employers as they look to increase diversity and inclusion in the workplace, and try to iron out potential equity issues with respect to pay, promotions, and benefits. Employees are also increasingly looking for ways to voice their opinions—and employers are required to balance the broad spectrum of such opinions.

June 21, 2021

Unpacking OSHA’s Historic Emergency Temporary Standard and Updated COVID-19 Guidance

By Robert Ayers

On June 10, OSHA announced two significant developments in the ongoing saga of COVID-19 restrictions in the workplace. First, OSHA issued an emergency temporary standard (ETS) applicable to healthcare settings. Second, OSHA updated its COVID-19 guidance for all other non-healthcare settings.

Healthcare ETS

The ETS represents the first set of requirements issued by federal OSHA in response to COVID-19. Prior to the ETS, OSHA had only issued non-binding guidance. While the ETS has been expected for months, what is surprising is its scope. Instead of applying to all industries or select high-risk industries, the ETS only applies to “settings where any employee provides healthcare services or healthcare support services.”

June 21, 2021

Employee Fails At Telework and Then Asks to Work From Home As Accommodation

by Brad Cave

Brad Cave

Question: We asked an employee who was working from home to return to the office because he failed to perform his job duties. Now, in the midst of a disciplinary process, he has submitted a request to work from home as a reasonable accommodation to prevent exposure to COVID-19. Are we required to grant his request?

Answer: Fear of exposure to COVID-19 is not a disability. If he has an underlying disability that causes him to be at higher risk from the virus or that has been exacerbated by the outbreak, however, the Equal Employment Opportunity Commission (EEOC) has stated you should consider whether continued telework might be a reasonable accommodation. You should engage in the interactive process with him to:

Understand the basis of his concern;
Determine whether he has a disability; and
If so, explore possible accommodations that would minimize his potential for exposure.

June 18, 2021

Consider EEOC Guidance When Asking Employees About COVID Vaccine

by Mark Wiletsky

Mark Wiletsky

Question: Can we ask employees if they have received the COVID-19 vaccine?

Answer: The short answer is: Yes. According to the Equal Employment Opportunity Commission (EEOC), you can ask employees if they have received a COVID-19 vaccine. You can also require individuals to provide proof they were vaccinated. Read more >>

June 17, 2021

10th Circuit Decision May Affect Work-From-Home Requests After Pandemic Ends

by Mark Wiletsky

Mark Wiletsky

As COVID-19 vaccinations increase and states ease pandemic-related restrictions, many employers are beginning to plan for employees’ to return to the office. But not all workers may want to return, and some might ask to work remotely because of ongoing concerns about the virus in light of underlying health conditions or simply a fear of becoming infected. It remains to be seen how courts will address the issues under the Americans with Disabilities Act (ADA) and state law, but the U.S. 10th Circuit Court of Appeals (which covers Colorado employers) recently provided useful guidance in a case addressing a prepandemic accommodation issue.

Facts

Joan Unrein worked at the Colorado Plains Medical Center as a clinical dietitian. At some point, she became legally blind. The hospital accommodated her blindness at work with special magnifying equipment, but her transportation issues were more problematic.

Unrein, who lived about 60 miles from the hospital, couldn’t drive herself to work or secure a ride service or public transportation, so she had to rely on friends and family. As a result, her ability to get to and from work was inconsistent, leading her to request a flexible schedule. Read more >>

June 16, 2021

Update Handbook, Policies to Include Sexual Orientation and Gender Identity

by Laurie Rogers

Laurie Rogers

Question: With the Supreme Court’s ruling on Title VII of the Civil Rights Act of 1964 regarding gender identification, can we leave the Title VII disclaimer in our company handbook and applications as is? Or does the wording need to be adjusted to specifically state “sexual orientation” and “transgender status”?

Answer: On June 15, 2020, the U.S. Supreme Court held in the landmark civil rights case Bostock v. Clayton County that Title VII’s protections extend to the LGBT community. Although Title VII doesn’t specifically address sexual orientation or gender identity (it prohibits employment discrimination based on “race, color, religion, sex, or national origin”), the Court’s decision interprets Title VII’s “on the basis of sex” language to include sexual orientation and transgender status. Read more >>

June 15, 2021

CO Clarifies Employers’ Obligation to Provide Public Health Emergency Leave in 2021

by Laurie Rogers

Laurie Rogers

In late 2020, the Colorado Department of Labor and Employment (CDLE) issued guidance confirming the COVID-19 pandemic had triggered the Healthy Families and Workplaces Act’s (HFWA) provision entitling all employees to up to 80 hours of supplemental public health emergency leave in 2021 (see CDLE Info Sheet # 6C). While the guidance alerted employers to their obligation to provide the benefit, it left several unanswered questions about the amount of emergency leave part-time and new employees are entitled to receive under the HFWA. On February 23, 2021, the department issued revisions to the wage protection rules answering the questions (see 7 CCR 1103-7).

General requirements under the HFWA

As of January 1, 2021, the HFWA requires most employers with 16 or more employees to let them accrue up to 48 hours of paid sick and safe leave annually. They may take the leave for various health- and safety-related needs. On January 1, 2022, all covered employers, including those with fewer than 16 employees, will have to provide paid sick and safe leave to their employees (for more details, see CDLE Info Sheet # 6B). Read more >>

March 24, 2021

Changing of the Guard: NLRB Precedent Under Biden Administration

by Steven Gutierrez

Given the recent, whiplash-like reversals of labor law precedent by the National Labor Relations Board (NLRB) (depending on which presidential administration is in power), employers naturally wonder if the current version of the NLRB under President Joe Biden will present a similar about-face from decisions made under the Trump administration. While you can safely assume the NLRB will be more prolabor under the Biden administration, a recent decision from the D.C. Circuit, emphasizing the importance of precedent in Board decisions, may assuage some fears of ongoing uncertainty in labor-management relations.

Background on federal labor relations law, generally

National Labor Relations Act (NLRA). The NLRA was enacted in 1935 to promote employees’ and employers’ rights, encourage collective bargaining, and curtail certain private-sector labor and management practices that can harm the general welfare of workers, businesses, and the U.S. economy. Congress believed some employers’ refusal to let employees organize or accept collective bargaining led to industrial strife or unrest, which adversely obstructed commerce. Read more >>