Category Archives: Policies & Employee Handbooks

April 23, 2024

10th Circuit Scrutinizes DEI Training Program

Brad Cave

Can an employer’s diversity, equity, and inclusion (DEI) program create liability for the discriminatory harassment of white employees? The U.S. 10th Circuit Court of Appeals (whose rulings apply to employers in Wyoming, Colorado, New Mexico, and Utah) recently warned that the training required by a Colorado state agency included some content that could constitute unwelcome race-based harassment. While the court ultimately rejected the employee’s harassment claim, the opinion serves as a good reminder that negative race-based messaging may be illegal no matter which race is the target.

White employee gets the blues over DEI training

Joshua Young worked for the Colorado Department of Corrections (CDOC). Department policy required all employees to complete mandatory DEI training, which included several online modules and incorporated a glossary of terms explaining various DEI themes and several additional videos and books about race.

Young objected to many of the messages in the training. His lawsuit alleged the training included “sweeping negative generalizations” about white people and painted the United States as a racist country. According to him, the training glossary said all white people are racist, and white people created the concept of race to justify the oppression of people of color. The glossary also explained that white people are triggered by feelings of guilt and fear when confronted with racial inequality and injustice, which amounted to “white fragility.” Read more >>

April 4, 2024

AI in the Workplace: Crafting Policies for Employees’ Use of Generative AI

Dana Dobbins

By Dana Dobbins

Artificial intelligence (AI) is becoming increasingly prevalent in workplaces, providing new opportunities as well as new challenges for employers and employees. While AI has the potential to improve efficiency and productivity, its use also raises important questions around issues like privacy, discrimination, and job displacement. Employers who choose to implement AI should consider including a provision in their employee handbook, or a separate policy, specifically addressing its use. Such a provision or policy can help mitigate risks, provide clarity for employees, and demonstrate an employer’s commitment to using AI ethically and responsibly.

Employers who incorporate AI into the workforce should develop policies governing appropriate use of generative AI, regularly update those policies as laws and technology continue to change, and enforce their policies. Employers should consider the following provisions in their AI use policies:

Specify Which Employees May Use AI and Require Prior Approval

For any number of reasons, employers may be willing to let some teams or groups, but not others, use generative AI technology, especially while the employer is still examining how AI can be incorporated in their company or industry. An AI policy should specify which departments, if any, are permitted to use AI. Read more >>

November 28, 2023

Accommodating a Request for Worship Space in the Workplace

Mark Wiletsky

by Mark Wiletsky

Question: Do employers need to provide a space for employees to worship and/or pray in the office?

The short answer is: Maybe. You must reasonably accommodate employees’ sincerely held religious, ethical, or moral beliefs or practices unless doing so would impose an undue hardship.

For decades, courts held that employers could deny such requests under Title VII of the Civil Rights Act of 1964 if the accommodation would impose more than a “de minimis” cost or burden. In June 2023, however, the U.S. Supreme Court “clarified” that standard. In Groff v. DeJoy, the Court held that employers can deny requests for religious accommodation only if the accommodation would result in “substantial increased costs in relation to the conduct of [an employer’s] particular business.” The Equal Employment Opportunity Commission (EEOC) has provided similar guidance, stating that employers shouldn’t try to suppress all religious expression in the workplace. Read more >>

November 2, 2023

Water Sources and Compliance with the PUMP Act

Dana Dobbins

By Dana Dobbins

Question: To be compliant with the PUMP Act, it states there must be a water source. Must this water source be in the same room as the designated space, or is nearby acceptable? It is difficult to identify a space that can be locked, quiet, and private that is not a bathroom but also has a sink.

Answer: The federal Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) was signed into law on December 29, 2022. The PUMP Act requires em-ployers to provide covered employees with “a place, other than a bathroom, that is shield-ed from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.” 29 U.S.C. 218d(a)(2). This law does not require that a water source be within the designated lactation space. Read more >>

October 31, 2023

Breastfeeding Accommodations in the Workplace

Dana Dobbins

By Dana Dobbins

The ability to pump breast milk in the workplace is protected by the FLSA. In 2010, the Break Time for Nursing Mother Act was passed as part of the Affordable Care Act (ACA) and amended the FLSA to include break time and space requirements for nursing to pump breast milk at work. The PUMP Act was signed into law on December 29, 2022, further amending the FLSA to extend the reasonable break time requirement and expand lactation space requirements. The PUMP Act also extended available remedies for violations. Employers should be cognizant of the PUMP Act requirements, as well as any further protections imposed by state and local law.

Break Time Requirements

The PUMP Act requires employers to allow covered employees, for one year after the child’s birth, to take reasonable break time each time such employee has need to express the milk. The PUMP Act is silent as to what is considered a reasonable break time or how many breaks are permitted, reinforcing the drafters’ intent that these issues are to be determined on a case-by-case basis depending on the individual needs of the employee. The Department of Labor (DOL) has explained that the frequency and duration of breaks will depend on a variety of factors, including the location of the lactation space, and the steps reasonably necessary to express breast milk, such as pump setup. An employer cannot deny a break for a covered employee who needs to pump. Read more >>

June 21, 2023

Our Company Is Expecting to Start a New Business Line, Should We Revisit Our Policies and Procedures?

Steven Gutierrez

by Steven Gutierrez

The fact your company is setting up a new business line doesn’t mean you must revisit the company’s policies and procedures, unless the addition of the new line would increase your employee count so much that the company would be obligated to offer new benefits or comply with additional mandates. 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 >>

September 24, 2020

Colorado Court of Appeals: Terms of Employer’s Vacation Policy Control Whether Accrued, Unused Vacation Time Must Be Paid Out at Separation

By Steven Gutierrez and Jeremy Merkelson, Holland & Hart LLP

Steve Gutierrez

The Colorado Court of Appeals issued a very favorable decision to employers today in a case litigated by Steve Gutierrez and Brad Williams of Holland & Hart, LLP. The case addressed an unsettled question under the Colorado Wage Claim Act (“CWCA”)—namely, whether accrued, unused vacation time must be paid out at separation of employment where an employer’s vacation policy states that it will not be. The Court of Appeals held that such time need not be paid out at separation, echoing a similar decision by the Court of Appeals in a similar case last year. The decision issued today—Blount Inc. v. Colorado Department of Labor and Employment, Division of Labor Standards and Statistics—adds fodder to a judicial debate over payout of vacation time that is likely to be resolved by the Colorado Supreme Court in 2021.

The CWCA requires that any unpaid wages and compensation must be paid to employees within specific time periods after their separation of employment. Amongst the wages and compensation that must be paid out is “vacation pay earned and determinable in accordance with the terms of any agreement between the employer and employee.” Colorado law has long been unsettled regarding whether this provision requires payout of any vacation time after it is accrued (e.g., on the theory that the vacation time is then “earned” and cannot lawfully be denied based on a separate section of the CWCA) or whether the terms of an employer’s specific vacation policy determine whether or not vacation time must be paid out at separation of employment (and if so, under what circumstances). The Colorado Department of Labor and Employment, Division of Labor Standards and Statistics (the “Division”), has long taken the position that vacation time once “earned” must always be paid out at separation, and that vacation policies providing otherwise are illegal. However, the Division has also issued inconsistent guidance and administrative decisions on wage claims that call this position into question—including inconsistent guidance on whether “use-it-or-lose-it” vacation policies are legal under its interpretation of the CWCA. Read more >>

May 11, 2020

Time to Review Unlimited PTO Policies

By Tyson Horrocks, Holland & Hart LLP

Tyson Horrocks

Like many businesses, you may have decided to give your employees unlimited PTO – or are considering doing so. The flexibility that unlimited PTO affords helps you attract and retain talent. You also avoid the administrative headaches associated with tracking PTO. And if you terminate the employee, you don’t have to pay out any accrued vacation time. Right? Not so fast.

A recent California Court of Appeal case reminds employers that loosely drafted PTO policies may leave them on the hook for unused vacation days. In McPherson v. EF Intercultural Found., Inc., No. B290869, 2020 WL 1543339, at *1 (Cal. Ct. App. Apr. 1, 2020), the employer purported to have an unlimited PTO policy for certain exempt employees, allowing them to come and go as they pleased so long as they fulfilled their job responsibilities. But the employer did not put this policy in writing, nor did they explain to the employees that paid time off was not a part of their compensation. In the absence of a well-defined policy, the Court found that the employer had an “implied cap” of vacation days based on the customary amount of vacation the employees took. Therefore, the Court held that when the company terminated its employees, it had to pay out the value of the unused portion of the “implied cap.” Read more >>

November 1, 2018

Updates on Harassment Charges, Overtime Rule, and Drug Testing

Cecilia Romero

By Cecilia Romero

EEOC’s Preliminary Sexual Harassment Data Shows Huge Increase

The Equal Employment Opportunity Commission (EEOC) released preliminary data earlier this month for fiscal year (FY) 2018. Its data shows:

The EEOC filed 66 harassment lawsuits, including 41 that included allegations of sexual harassment, reflecting more than a 50 percent increase in suits challenging sexual harassment over FY 2017.
Charges filed with the EEOC alleging sexual harassment increased by more than 12 percent from FY 2017.
The EEOC recovered nearly $70 million for the victims of sexual harassment through litigation and administrative enforcement in FY 2018, up from $47.5 million in FY 2017.

Perhaps this data is a reflection of the “#MeToo” movement with alleged victims more willing to come forward. But it also shows the EEOC’s focus on preventing and remedying workplace harassment, as the agency continues to actively enforce federal anti-discrimination laws while also educating employees, employers, and the public on unlawful harassment.

DOL Delays Revised Overtime Rule Until Spring

The U.S. Department of Labor’s (DOL’s) Wage and Hour Division is working on revising the regulations that implement the exemption of bona fide executive, administrative, and professional employees from the Fair Labor Standards Act’s minimum wage and overtime requirements. Most of you will recall the tortured history of the previously updated salary threshold that was promulgated under the Obama Administration and would have raised the salary level for the exemption to an annualized salary of $47,476. That final rule was never implemented, due to a nationwide court injunction so the salary level remains at $23,660 per year ($455 per week). Now, the DOL’s Notice of Proposed Rulemaking that will propose an updated salary level for the exemption and seek the public’s view on the salary level and related issues has been delayed until March of 2019. Reports suggest that the proposed salary level will be in the low $30,000 range annually, or close to $600 per week. We’ll have to wait and see what is proposed in the Spring – we’ll keep you posted.

OSHA Clarifies Post-Incident Drug Testing Position

On October 11, 2018, the DOL released an interpretation memorandum from the Occupational Safety and Health Administration (OSHA) that is meant to clarify OSHA’s position on post-incident drug testing and safety incentive programs in the workplace. Applicable regulations, 29 C.F.R. § 1904.35(b)(1)(iv) states, “you must not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness.” Previously, OSHA had indicated that post-incident drug-testing requirements could be considered retaliatory for employees who report or are involved in workplace safety incidents, or could otherwise chill an employee’s willingness to report a safety issue or workplace injury.

In its new interpretation, OSHA clarifies that it “…believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health. In addition, evidence that the employer consistently enforces legitimate work rules (whether or not an injury or illness is reported) would demonstrate that the employer is serious about creating a culture of safety, not just the appearance of reducing rates. Action taken under a safety incentive program or post-incident drug testing policy would only violate 29 C.F.R. § 1904.35(b)(1)(iv) if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.”