The Rocky Mountain Employer

“On November 8, 2024, the National Labor Relations Board (the “Board”) ruled in Siren Retail Corp. d/b/a Starbucks Corp. that the prior test governing the lawfulness of statements made by employers concerning the effects of unionization on the employer/employee relationship was wrongly decided, and defined a new test that considers whether the employer’s statements are factually supported and reasonably justified.  This pro-labor decision is one of the last that may be issued by the Board under its current Democratic majority, prior to the inauguration of President-elect Trump and the personnel changes expected to accompany his return.”

“The Rocky Mountain Employer recently discussed the U.S. Department of Labor’s recent guidelines focused on preventing disability discrimination in the hiring process resulting from the use of artificial intelligence (“AI”) and has previously discussed Colorado’s own legislation intended to curb unintentional discrimination resulting from the use of AI in employment decisions.”

“On October 7, 2024, the Colorado District Court for the City and County of Denver denied Southwest Airlines’ motion to dismiss the Transport Worker Union of America, AFL-CIO, Local 556’s Complaint seeking a declaratory judgment that the settlement reached between Southwest and the Division of Labor Standards and Statistics is unenforceable.”

“On September 9, 2024, the Colorado Supreme Court in Hamilton v. Amazon.com Services LLC held that holiday incentive pay offered by an employer must be included in the calculation of the “regular rate of pay” when determining an employee’s overtime rate of pay.“

“The U.S. Supreme Court is set to review how reverse discrimination claims are assessed under Title VII of the Civil Rights Act and resolve an ongoing Circuit split on the issue.”

"On September 24, 2024, the U.S. Department of Labor (“DOL”) announced the publication of a set of guidelines intended to support the inclusive use of artificial intelligence technologies (“AI”) by employers utilizing the technology in the hiring process."

"Last week, the Equal Employment Opportunity Commission (EEOC) brought two suits alleging that each respective employer violated the Pregnant Workers Fairness Act (PWFA) by, among other things, denying reasonable accommodations under the PWFA, punishing employees for exercising their rights under the PWFA, and otherwise requiring employees to work against the advice and direction of the employee’s physicians."

"Enacted in 2008, the Mental Health Parity and Addiction Equity Act aims to put benefits offered by insurers and group health plans for the treatment of mental health and substance use disorders (“MH/SUD”) on an even playing field with benefits for other medical or surgical treatments by prohibiting plans and insurers from placing undue restrictions or limitations on MH/SUD benefits (both qualitative and quantitative), as compared to other medical or surgical benefits being offered."

"On July 25, 2024, the Court of Appeals for the Ninth Circuit in Okonowsky v. Garland held that social media posts made by a coworker outside of work may be considered part of the overall totality of circumstances in evaluating an employee’s Title VII claim for a hostile work environment based on sex."

"n 2017, the U.S. Supreme Court held in Bristol-Myers Squibb Co. v. Superior Court of California that California state courts did not have personal jurisdiction over hundreds of mass tort action plaintiffs’ claims when general jurisdiction over the defendant was lacking, the plaintiffs were non-residents of the forum state (California), and the non-resident plaintiffs did not suffer any of their alleged injuries in California."

"The Occupational Safety and Health Administration (OSHA) has recognized that heat is the leading cause of death among all weather-related phenomena in the United States, and excessive heat in the workplace can cause heat stroke and even death."

"On August 23, 2024, the Court of Appeals for the Fifth Circuit held that the Department of Labor’s 2021 regulations governing tip credits were invalid and vacated the same."

"The Rocky Mountain Employer has been keeping a close watch on the Federal Trade Commission’s final Non-Compete Clause Rule (the “Rule”), including the U.S. District Court for the Northern District of Texas’s issuance of a preliminary injunction against enforcement of the Rule as against the named plaintiffs to that case (Ryan LLC v. Federal Trade Commission) and the U.S. District Court for the Eastern District of Pennsylvania’s contrary decision upholding the legality of the Rule (ATS Tree Service, LLC v. Federal Trade Commission)."

"The Criminal Division of the Department of Justice has launched a new Corporate Whistleblower Awards Pilot Program, effective August 1, 2024, to enhance corporate accountability and combat corporate crime."

“In its August 2, 2024 motion for summary judgment, plaintiff Colt & Joe Trucking LLC moved for summary judgment in the U.S. District Court for the District of New Mexico to vacate the Department of Labor’s 2024 Final Rule concerning its revised test to distinguish between employees and independent contractors for classification purposes, claiming that the Rule’s economic realities test is vague, arbitrary, and inappropriately expands the coverage of the Fair Labor Standards Act to potentially encompass workers who nonetheless maintain control over their own work and retain the opportunity for profit.”

“As previously discussed in The Rocky Mountain Employer, since the Federal Trade Commission (“FTC”) issued its final Non-Compete Clause Rule (the “Rule”) on April 23, 2024, the Rule has been the subject of multiple legal challenges across the country, including within the U.S. District Court for the Northern District of Texas where the court enjoined the application and enforcement of the Rule as against the named plaintiffs because it found that the FTC lacked the authority to issues “substantive” rules like the Rule at issue.”

“The Rocky Mountain Employer previously discussed a final rule issued by the National Labor Relations Board, which was previously set to go into effect in early 2024 and which would have significantly lessened the burden of employees and the Board to establish joint employment between two entities for purposes of bargaining obligations and liability for unfair labor practices under the National Labor Relations Act".”

“On July 12, 2024, the United States District Court for the Northern District of California ordered that Mr. Derek Mobley’s employment-related lawsuit against Workday, Inc. could proceed past the pleadings stage—notwithstanding that Workday was not Mr. Mobley’s employer, but rather a developer of an artificial intelligence (“AI”)-based employment and resume screening platform.”

“On July 3, 2024, the U.S. District Court for the Northern District of Texas granted plaintiff Ryan LLC’s and other plaintiff-intervenors’ (including the United States Chamber of Commerce) request for a preliminary injunction against the Federal Trade Commission and its recent Final Rule banning nearly all non-compete agreements, set to go into effect on September 4, 2024.“