5th Circuit to Reconsider Elon Musk’s Tweet
On Friday, July 21, 2023, the U.S. Court of Appeals for the Fifth Circuit said that it would reconsider its March ruling that Tesla CEO Elon Musk unlawfully threatened to take away employees’ stock options in a 2018 Twitter post.
On May 20, 2018, amid organizing efforts by the United Auto Workers union, Musk tweeted: “Nothing stopping Tesla team at our car plant from voting union. Could do so tmrw if they wanted. But why pay union dues and give up stock options for nothing? Our safety record is 2X better than when plant was UAW & everybody already gets healthcare.” The National Labor Relations Board (NLRB) determined the tweet to be an implied threat to end stock options as retaliation for unionization, and ordered Musk to delete the tweet in March 2022 amid renewed UAW organization efforts. Attorneys for Tesla argued that the NLRB’s order conflicted with Supreme Court and Fifth Circuit precent regarding the First Amendment’s free speech protection.
In March 2023, three judges on the Fifth Circuit upheld the NLRB’s order for Musk to delete the tweet. However, a majority of the court’s full-time judges have now voted to hear the matter again in front of the full court (en banc), thus vacating the March ruling. The Fifth Circuit currently has sixteen full-time judges – twelve of whom were appointed by Republican presidents.
Commanders Owner Dan Snyder Fined $60 Million by NFL After Results of Workplace Investigation
On July 20, 2023, the NFL released the findings of the investigation into Washington Commanders owner Dan Snyder, revealing that Snyder sexually harassed a team employee and oversaw team executives who deliberately withheld millions of dollars in revenue from other clubs. Snyder has agreed to pay a $60 million fine as a result of his misconduct.
The investigation was led by former Securities and Exchange Commission chair Mary Jo White and conducted by her law firm, Debevoise & Plimpton. The investigation found that the organization withheld $11 million in revenue that should have been shared with other teams. However, the amount is likely greater, as Snyder and the team did not cooperate fully with the investigation.
The investigation also found that Snyder sexually harassed a former team employee when he placed his hand on her thigh at a team dinner and pushed her toward his car as they were leaving the restaurant. Snyder denied the allegations and only agreed to speak with the investigators for one hour. The investigators spoke with the former employee on numerous occasions and “found her to be highly credible,” the report said. The former employee’s account of the events was corroborated by witnesses and other evidence.
Colorado’s POWR Act – Changes to Record Keeping Requirements
On June 6, 2023, Colorado Governor Jared Polis signed into law the Protecting Opportunities and Workers’ Rights (POWR) Act.  The POWR Act, which imposes vast changes on Colorado employment law, will become effective on August 7, 2023. Among other significant changes, the POWR Act sets forth new requirements for the storage of personnel files.
The POWR Act will require all employers to maintain “any personnel or employment record” the employer made or received for at least five years. “Personnel or employment records” have been defined to include:
- Requests for accommodation;
- Employee complaints of discriminatory or unfair employment practices;
- Application forms submitted by applicants for employment; and
- Other records related to hiring, promotion, demotion, transfer, termination, rates of pay or other terms of compensation, and selection for training or apprenticeship, and records of training provided to or facilitated to employees.
With regard to complaints of discriminatory or unfair employment practices, employers must maintain those records in a designated repository. This requirement applies to both written and oral complaints of unfair employment practices, including the date of the complaint, the identity of the complaining party (unless anonymous or unknown), the identity of the alleged respondent, and the substance of the complaint.
The changes to record keeping requirements were just one facet of the wide-sweeping changes to Colorado employment law that the POWR Act imposed. Colorado employers should meticulously review the requirements of the law and update their policies, procedures, and agreements accordingly.