Bill Berger

Bill Berger

Brownstein Hyatt Farber Schreck

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Colorado Ethics Committee Issues New Guidance On The Use Of Social Media For Investigative Purposes

The Colorado Bar Association Ethics Committee recently clarified the ethical boundaries associated with attorney use of social media for litigation. Formal Opinion 127 (Opinion), issued in September 2015, addresses certain...more

11/9/2015 - Discovery Ethics Investigations Social Media

NLRB Establishes New Joint Employer Test

On Aug 27, 2015, the National Labor Relations Board (NLRB) dramatically revised its test for the joint employer doctrine, under which two or more companies, even if not affiliated, may be held liable for each other’s labor...more

9/15/2015 - Browning-Ferris Industries of California Inc. Franchises Joint Employers Multi-Factor Test NLRB Right to Control Staffing Agencies

Court Decision Raises Questions for Employers Affected by Acting NLRB General Counsel Solomon

In a continuing series of challenges to the president’s authority to appoint positions at the National Labor Relations Board, former General Counsel Lafe Solomon was recently declared to have unlawfully filled the position...more

8/27/2015 - Administrative Appointments NLRB NLRB General Counsel

NLRB Rules Witness Statements No Longer Automatically Protected from Union Disclosure

On June 26, 2015, the NLRB (“Board”) overruled, in a case titled American Baptist Homes of the West, its 45-year old precedent regarding the discoverability of witness statements. When an employer is faced with workplace...more


New OSHA Inpatient Facility Review Guidance Focuses on Five Workplace Hazards

On June 25, 2015, the Occupational Safety & Health Administration (OSHA) issued a memorandum regarding inpatient health care settings. The memorandum does not create new law. Rather, it provides guidance to OSHA compliance...more

7/1/2015 - Health Care Providers Inpatient Rehab Facilities OSHA Slip and Fall Workplace Violence

Trustee Alert – Health Plan Exclusion of Medical Marijuana

Due to changes in state marijuana laws, including medical and recreational use, health plan administrators are wondering whether they may be required to cover medical marijuana or whether a plan can or should exclude it from...more

6/29/2015 - Exclusions Health Insurance Health Plan Sponsors Marijuana Medical Marijuana Policy Exclusions

Study: One in Seven Colorado Adults Use Marijuana

The Colorado Department of Public Health and Environment reports that roughly one in seven, or 13.5 percent of adults in Colorado currently use marijuana. In addition, nearly half the adult population of Colorado, 48.9...more

6/24/2015 - Marijuana Medical Marijuana Statistical Analysis

NLRB Rules 'Vulgar' Union Buttons Allowed

In our prior alerts, we notified you of the National Labor Relations Board’s (NLRB) recent decisions clarifying when, in the current board's estimation, an employer violates Section 7 of the National Labor Relations Act...more

6/19/2015 - Employment Policies NLRA NLRB Offensive Language Protected Activity Section 7 Unions

Colorado Supreme Court Ruling on Employee Marijuana Use Has National Implications

In a much anticipated decision, the Colorado Supreme Court reaffirmed an employer’s right to enforce its drug policy even against a medical marijuana user. Because the court’s decision on Coats v. Dish Network, LLC is rooted...more

6/16/2015 - CO Supreme Court Coats v Dish Network Drug Testing Employment Policies Marijuana Medical Marijuana Off-Duty Employees

New NLRB Election Rules Accelerate Union Action

The National Labor Relations Board’s (NLRB) new election rules took effect April 14 and companies are already reporting effects from the change. In our prior alerts, we noted that the new election rules take their...more

6/2/2015 - Ambush Election Rules Employer Liability Issues NLRB Unions

NLRB General Counsel Releases Memorandum on Unlawful Employer Policies

In our prior alert, we notified you of the National Labor Relations Board’s (NLRB) decision to overturn an administrative law judge’s (ALJ) ruling, finding that a confidentiality agreement had violated employee rights under...more

4/8/2015 - Employee Handbooks Employment Policies NLRA NLRB NLRB General Counsel Section 7

Colorado Tax Revenue for Recreational Marijuana Lower Than Expected

Last month, the Colorado Department of Revenue released the December sales tax data for recreational marijuana, bringing the total for Colorado’s first full calendar year of taxes on recreational marijuana to about $44...more

3/25/2015 - Department of Revenue Marijuana Medical Malpractice Sales & Use Tax Tax Revenues

New Guidance in Colorado on Rules of Evidence for Social Media

When litigating cases in court, lawyers must follow formal rules of evidence. In 1965, Chief Justice Earl Warren of the United States Supreme Court started developing what would eventually become formal Rules of Evidence. The...more

3/25/2015 - Criminal Prosecution Evidence Federal Rules of Evidence Social Media

NLRB’s Controversial Issuance of Final Rules Set to Take Effect April 14, 2015

In recent client alerts, we discussed the NLRB’s issuance of final rules, set to take effect April 14, 2015, which will expedite the election process in union organizing campaigns. The NLRB has just issued a fact sheet...more

3/16/2015 - NLRB Union Elections Unions

Colorado Provides Employers Resource on Marijuana Health Risks

The Colorado Department of Public Health & Environment (“CDPHE”) issued a 188-page report entitled, “Monitoring Health Concerns Related to Marijuana in Colorado: 2014.” The report was prepared by a 13member committee...more

3/13/2015 - Information Reports Marijuana Public Health

NLRB Overturns ALJ Decision; Finds Confidentiality Agreement Violated Employee Rights

On Feb. 24, 2015, the National Labor Relations Board (NLRB) held that a Washington transportation company’s Confidentiality Agreement violated the National Labor Relations Act (NLRA). The case was titled, Battle’s Transp.,...more

3/9/2015 - Administrative Hearings ALJ Confidentiality Agreements Employer Liability Issues NLRA Section 7

How New Marijuana Laws Will Impact the Hospitality Industry

On Feb. 10, 2015, Bill Berger and Matt Arentsen led a roundtable discussion at the Hospitality Law Conference in Houston, Texas. Speakers and attendees at the conference represented a broad spectrum of hospitality industry...more

3/4/2015 - Decriminalization of Marijuana Employer Liability Issues Employment Policies Hospitality Industry Marijuana Medical Marijuana

NLRB Reversal Prompts Concerns for Employers on E-Mail Use

On December 11, 2014, the National Labor Relations Board (NLRB) issued a major decision, Purple Communications. The decision reversed the board’s 2007 decision in Register Guard, where the NLRB had drawn one of the few...more

12/17/2014 - Email NLRB Protected Concerted Activity Purple Communications Unions

NLRB’s Election Rules Overhaul Sounds Alarms for Employers

In a one-two punch combination for employers, the National Labor Relations Board (NLRB) issued on Dec. 12, 2014, its final expedited election rules. Supporters colloquially call them “quickie” election rules while opponents...more

12/17/2014 - Email NLRB Quickie Election Rules Union Elections Unions

NLRB Reverses Its Stance on Determining Successor Liability for Refusal to Hire

Companies who have bought or are considering buying unionized workplaces should familiarize themselves with a significant decision affecting liability issues made last month by the National Labor Relations Board (NLRB)....more

11/7/2014 - Employer Liability Issues Hiring & Firing NLRA NLRB Professional Liability Successor Liability Successors

Eighth Circuit Reminds Nonprofits They Are Subject to Whistleblower Laws

Nonprofits help shape, empower, and strengthen many underserved communities with the aid of donors who believe and trust in the organization’s mission. These goodhearted missions come with accountability to both donors and...more

9/24/2014 - Adverse Employment Action Appeals Employer Liability Issues Ethics Fraud Hiring & Firing Non-Profits Transparency Whistleblowers

Two Colorado Supreme Court Decisions Address Independent Contractor Relationships

Companies using independent contractors should review their practices in light of two recent decisions from the Colorado Supreme Court: I.C.A.O. v. Softrock Geological Services, Inc. and Western Logistics, Inc. v. I.C.A.O....more

6/3/2014 - Contractors Employer Liability Issues ICAO Independent Contractors IRS SCOTUS

Companies Acquiring Unionized Businesses Face Increased Scrutiny by the NLRB

Companies acquiring unionized businesses are likely to face increased scrutiny from the National Labor Relations Board (“Board”). On May 9, 2014, NLRB General Counsel Richard F. Griffin, Jr., issued a memorandum instructing...more

5/27/2014 - CBAs Collective Bargaining Employee Rights NLRA NLRB Unions

SCOTUS Expands Sarbanes-Oxley to Include Contractors

In a stunning expansion of previously understood law, the Supreme Court held, on Tuesday, March 4, 2014, that the employees of a contractor to a publicly traded company may sue their employer for retaliation suffered as a...more

3/11/2014 - Employee Definition Lawson v FMR Retaliation Sarbanes-Oxley SCOTUS Whistleblowers

What Employers Need to Know About Marijuana Legalization in Colorado and Washington

Employers should brace for a number of lawsuits trying to expand these laws into something the courts have already said they're not: a right to have marijuana in one's system at work....more

1/16/2014 - Decriminalization of Marijuana Drug Testing Hiring & Firing Law Matters Legal Perspectives Marijuana Medical Marijuana

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