Federal Employee Issues: The Agency’s Burden To Articulate A Legitimate, Non- Discriminatory Reason

In a complaint of discrimination against the federal government, the federal agency has the burden to articulate a legitimate non-discriminatory reason for the alleged discriminatory actions, after the complainant sets forth an initial showing of discrimination. What does the agency have to establish to meet its burden? Find out in our latest article addressing the legal standards applicable to federal sector employees filing EEO complaints of discrimination. Federal Employee Issues: Agency’s Burden To Articulate A Legitimate, Non-
Discriminatory Reason
.

Is Colorado’s Wage Order intended to extend overtime protections to certain classes of employees who are not protected by the Fair Labor Standards Act?

According to a recent decision by the Colorado Court of Appeals in Brunson v. Colo. Cab Co., LLC, 2018 COA 17, the Colorado Wage Order, as interpreted by the Colorado Department of Labor, provides greater employee protection than does federal law. Our summary of the case and analysis of the impact on future cases is attached. For additional information, contact Amanda Walck at 720-999-5390 or Amanda@wick-law.com.

Discrimination During Polygraph Examinations-Federal Employees

As a federal government applicants or employees, you may be required to take a polygraph
examination as a prerequisite to being hired by, or to continue employment with, a federal
government agency. Our new article discusses the ability of the Equal Employment Opportunity
Commission (EEOC) to review an allegation that an applicant or employee was subjected to
unlawful discrimination during a polygraph examination.

Discriminatory Polygraph Examinations

The 2018 Edition Of Our Book Is Available Now!

The 2018 edition of the Federal Sector Equal Employment Opportunity Practice Guide, written by The Wick Law Office's Benjamin Wick and Holly Franson has shipped. This book provides practical legal advice, guidance, and strategies for employees, HR professionals, and attorneys. Order your copy here https://store.lexisnexis.com/categories/shop-products/coming-soon-174/federal-sector-equal-employment-opportunity-practice-guide-skuSKU02358

The Wick Law Office is moving!

We are very excited to announce that the Wick Law Office is moving April 1, 2018 to a new office space. Our new address as of April 1, 2018 will be:

The Wick Law Office, LLC

600 Grant Street, Suite 610

Denver, CO 80203

Federal Employee Guidance: What is a Final Agency Decision (FAD)?

The Final Agency Decision or FAD is an odd nuance that exists in federal sector employment discrimination cases. The FAD, and what is included in a FAD, can be confusing for federal employees trying to navigate the federal sector EEO complaint process. Our latest article is designed to help address confusion and answer common questions about FADs. If you are a federal employee and considering requesting a FAD or have additional questions about FADs that, please contact us.

Federal Employee Fact Sheet: What Is A FAD?

Non-Pecuniary, Compensatory Damages in the Federal Sector

When a federal employee prevails in a discrimination claim, that employee is generally is entitled to damages for emotional and physical harm caused by the discrimination. These damages are referred to as non-pecuniary, compensatory damages. However, there is much confusion over the legals standards that apply to such awards. Our latest guidance seeks to clarify the legal standards that are applicable to these awards of damages.

Federal Sector: Non-Pecuniary, Compensatory Damages

The Hidden Cost of Disability Discrimination

According to a recent article, more than one third of individuals with disabilities experience discrimination in the workplace. Additionally, regardless of whether the disability is “visible” or “invisible” (i.e. migraines, depression, etc.), employees report feeling stalled in their careers, but are afraid to ask for reasonable accommodations. https://www.cbsnews.com/news/the-hidden-cost-of-disability-discrimination/

We encourage employees with disabilities to seek reasonable accommodations when needed and to report discrimination when it occurs. However, we are mindful of the difficulties in disclosing disabilities and the concerns about retaliation. Creating an atmosphere inclusive of individuals with disabilities benefits employees and the employers. Moreover, most reasonable accommodations have little or no cost to the employer. Disability discrimination is unlawful and studies have shown that employees with disabilities are more ambitious than those without, increasing the margin of missing a potential benefit to the workplace by excluding individuals with disabilities.  

If you or someone you know has been the victim of workplace discrimination or if you have questions about reasonable accommodations, please contact us.

Upcoming Presentation: Colorado Bar Association’s Employment Law Clinic

The Wick Law Office’s Benjamin Wick and Holly Franson will be presenting at the Colorado Bar Association’s Employment Law Clinic in Vail, Colorado on October 7, 2017. Our presentation, titled Pregnancy and Breastfeeding in the Workplace: Litigation, Accommodations, and Advising Your Clients, will focus on the federal and state laws that protect pregnant and breastfeeding employees in the workplace. We will also discuss best practices for advising employers and employees to ensure compliance with the applicable statutes. Registration information is available at: http://cle.cobar.org/employment.

The Wick Law Office Is Expanding!

To better serve those clients in the Vail Valley, Summit County, the surrounding mountain areas, and the western slope, we are now offering appointments in Avon, Colorado. If you would like to schedule an appointment to meet with us in Avon, please contact us at 720-999-5390. 

New York Federal Court Finds Employment Arbitration Agreement To Be Invalid

On July 14, 2017, the U.S. District Court of the Southern District of New York held that an arbitration agreement was not a binding contract between the employer and employee because there was neither an offer nor an acceptance. The employer, Macy’s, proffered that an “Election Form” was sent to employees for the employees to opt out of their “right to arbitration” by signing and returning the form. Macy’s interpreted the failure to sign and return the form to be a binding agreement to resolve employment disputes solely through arbitration. 

The Court rejected this argument relying on New York common law which states in relevant part that “it is well settled that [a] party to an agreement may not be compelled to arbitrate its dispute with another unless the evidence establishes the parties’ clear, explicit and unequivocal agreement to arbitrate.” Fiveco, Inc. v. Haber, 11 N.Y.3d 140, 144, (N.Y. 2008) (internal quotation marks and citations omitted). The Court found that the “Election Form” provided to the employee was “remarkably counterintuitive, ambiguous, and misleading.” Weiss v. Macy's Retail Holdings Inc., 2017 U.S. Dist. LEXIS 109757 (S.D.N.Y. July 14, 2017). Additionally, the Court found that there was no acceptance, relying on New York case law which states that “an offeror has no power to transform an offeree's silence into acceptance when the offeree does not intend to accept the offer[.]” Karlin v. Avis, 457 F.2d 57, 62 (2d Cir. 1972).

Although this decision only directly impacts employees in New York, it should be a signal to employers and employees about the requirements for a valid arbitration agreement in the employment context. It also provides employees with arguments that might be used to invalidate arbitration agreements, if presented with similar factual circumstances.