As sure as the transition from winter to spring brings tulips and daffodils, the realm of employment law also heats up. I usually focus on one topic each month. But I’ve seen several new items that could affect some employers and portend change for all employers.

First, a United States District Court of Texas judge delayed the effective date of the National Labor Relations Board joint-employer liability rule until
March 11, 2024. The rule, which already was subject to delay, was scheduled to take effect on Feb. 26.

The new NLRB rule expands the legal test for determining whether two
organizations jointly employ the same
workers. The final rules state an employer shares or codetermines those matters governing employees’ essential terms and conditions of employment if the employer possesses the authority to control or exercises the power to control one or more of the employees’ essential terms and conditions of employment, regardless of whether the employer exercises such control or the manner in which such control is exercised.

Essential terms and conditions of employment include:

Wages, benefits and other compensation,

Hours of work and scheduling.

The assignment of duties to be performed.

The supervision of the performance of duties.

Work rules and directions governing the manner, means and methods of the performance of duties and the grounds for discipline.

The tenure of employment, including hiring and discharge.

Working conditions related to the safety and health of employee.

The new rule could exert major effects on certain employers — particularly franchise operations and those that use contractor or temporary labor services or professional employer organizations — and imposes greater liability for labor law violations and bargaining obligations.  

Second, on Dec. 6, the U.S. Supreme Court heard oral arguments in the case of Muldrow v. City of St. Louis. Muldrow alleged the St. Louis Police Department discriminatingly transferred her out of a task force in the intelligence division to a patrol supervision position because of her gender. The federal court and Eighth Circuit Court of Appeals held that her transfer, even if because of her gender, was not an adverse employment action because the transfer didn’t significantly disadvantage her.

The standard in the Eight Circuit is that an adverse employment action must significantly disadvantage the affected employee. Muldrow’s attorney argued that even trivial harms in the workplace immediately become nontrivial if they occur because of discrimination against a protected status.

The Tenth Circuit, where we’re located, requires an adverse employment action to be material. A mere inconvenience or alteration of job responsibilities isn’t deemed an adverse employment action that would allow the employee to prevail in a discrimination case. Would Muldrow have been decided differently in the Tenth Circuit?
In Aquilino v. Univ. of Kansas, the Tenth Circuit held reassignment with significantly different responsibilities was a significant change in employment status that rose to the level of a material adverse employment action.

This case narrowly applies to transfers and reassignments. But some employers fear this is the proverbial camel’s nose under the tent that will lead to increased complaints and litigation over minor inconveniences in the workplace. We can expect a decision from the U.S. Supreme Court in late spring or early summer.

Finally, the Colorado Department of Labor and Employment issued a new interpretive notice and formal opinion No. 5 guidance document broadly defining actions that interfere with employee labor rights. These rights include the right to engage in concerted activity to address terms and conditions of employment, discussing pay rates, complaining of wage or safety violations or engaging in union activities. The CDLE defines adverse action as any acts “that may deter protected activity.” You can view the new guidance at https://cdle.colorado.gov/dlss-home-page/interpretive-notice-and-formal-opinions-infos-and-other-published-guidance.

Nothing is as certain as change. The Employers Council provides members resources on these and other employment law changes. Consulting and enterprise members may discuss how these changes affect their workplaces with human resource professionals and employment attorneys.