Category Archives: Employment Law

A law without enforcement is just good advice: true for Colorado’s new rule for personnel files?

filesEffective January 1, 2017, most Colorado private sector employers must provide employees access to their personnel file upon request. The new law, to be codified at C.R.S. § 8-2-129 (2017), which passed with bipartisan support, seeks to deter frivolous employee lawsuits by fostering an environment of open communication between employer and employee. In the case of current employees, access must be provided at least once annually, while former employees are allowed one formal inspection post-separation.

Under the law’s definition, “personnel files” include records that can qualify an employee for hiring, promotion, additional compensation, disciplinary action, or employment termination. Foremost among the numerous exclusions from this definition are documents required to be placed or maintained in a separate file by state or federal law.

If your employment agreement attempts to apply law of a jurisdiction not allowing such access, there may be potential conflict of laws implications given the legislative declaration that it is Colorado’s public policy that employees have such access.

Since the general assembly has not authorized any private cause of action, is there an echo of Lincoln’s maxim, that a law without enforcement is just good advice? On the contrary, since employers failing to comply can face an audit from the Colorado Department of Labor or an investigation from the Department of Regulatory Agencies, this law is more than mere advice.

Employment counsel at Robinson Hungate PC are equipped to address any employer compliance issues, including those involving C.R.S. § 8-2-129.

NLRB signals to employers in the gig economy

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Properly classifying employees, or restructuring the job so workers are truly independent contractors, just took on greater importance with a recent NLRB signpost.

The independent federal agency, which is authorized to sue private sector employers for unfair labor practices, released a memo signaling its approach toward employers who misclassify employees as independent contractors. The Board held that by treating workers as employees in virtually every respect while continuing to insist that they are independent contractors, the employer committed unfair labor practice. The Board was persuaded that the employer actually maintained extensive control over the workers’ day-to-day operations, notwithstanding a form agreement stating that workers are independent contractors.

Although this theory currently remains untested in the courts, it is consistent with NLRB precedent and, under the Board’s Non-Acquiescence Policy, likely to be applied until taken up by the Supreme Court.

The NLRB is the latest agency to scrutinize the practice by employers of shoehorning workers into the independent contractor classification, viewed as harmful to workers, law-abiding employers, and the overall competitiveness of the U.S. economy. The Department of Labor issued its memorandum indicating that this practice would be a priority for its enforcement efforts back in July 2015.

For background information on the NLRB, along with summaries of some recent issues it has addressed, see this slideshow, prepared for a legal education seminar by our attorney Dipak Patel.

 

Impact of Recent NLRB Decisions

Our attorney Dipak Patel and Laura Wolf of Rathod Mohammedbhai LLC prepared this slide show for a legal education seminar sponsored by the Boulder Bar Association. If you have any questions or comments about it, please email us at .

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