Category Archives: Legislation

January 22, 2025

Wyoming Legislature Considers Eleven Employment Bills

Brad Cave

by Brad Cave

The Wyoming Legislature convened last week, and our elected representatives have a full agenda of proposed employment laws. From changing the rules for time off for voting to prohibiting mandatory DEI training, the proposed legislation could result in more changes for Wyoming employment law than we have seen in decades. Wyoming employers should pay attention to these proposals.

Anti-Woke Proposals. The growing nationwide “anti-woke” movement and its related resistance to diversity, equity and inclusion programs (DEI) has influenced several bills before the legislature.

What is a Woman Act. House Bill 32 would create statutory definitions of the terms sex, male and female, tied to a person’s biological sex at birth, and would define boy, girl, father and mother in relation to biological sex at birth. The bill would also establish, at least as a matter of Wyoming law, that separate accommodations based on biological sex are not inherently unequal, and that accommodations can be equal with respect to biological sex without being the same or identical. Read more >>

August 22, 2024

Algorithmic Accountability: The Next Frontier in Employment Law?

Little V. West

By Little V. West

Artificial intelligence (or AI) technology is rapidly transforming industry norms and creating new possibilities along with moral, ethical, and legal implications. The Society for Human Resource Management has recently observed that “[a] workplace run by AI is not a futuristic concept,” noting that a 2022 “report found that 85 percent of employers using automation or AI said it saves time or increases efficiency.”[1]

Regulators and legislators have kept pace with the daily news of breakthroughs in AI capabilities. The result is a virtual kaleidoscope of developing requirements in various jurisdictions, some of which are already in effect, some of which are yet become effective, and some of which may yet be enacted bearing on the use of AI in the workplace. Read more >>

June 8, 2023

Shifting Landscape: New Laws Significantly Impact Colorado Employers

Mark Wiletsky

Mark Wiletsky

by Mark Wiletsky and Joshua Kohler

During this legislative session, Colorado enacted more protections for employees in the workplace, including redefining what constitutes unlawful harassment, restricting confidentiality agreements, expanding the ability to use paid sick leave, and addressing job posting requirements.

Governor Polis signed into law the Protecting Opportunities and Workers’ Rights (POWR) Act (SB23-172), Additional Uses of Paid Sick Leave (SB23-017), and the Ensure Equal Pay for Equal Work Act (SB23-105). POWR and Additional Uses of Paid Sick Leave go into effect August 7, 2023 and Ensure Equal Pay for Equal Work Act goes into effect January 1, 2024.  These laws, and POWR in particular, make considerable changes to the obligations and requirements of employers in Colorado. Now is a good time to revisit any form agreements used with current or prospective employees (e.g., settlement agreements, employment agreements, etc.) and employee handbooks, update anti-harassment and complaint procedures and plan for anti-harassment training, and assess your internal job posting process.

Read more >>

November 2, 2021

Federal Contractors Offered Some Flexibility to Implement COVID-19 Vaccine Mandate

by Shaun C. Kennedy and Ryan K. Lundquist

Shaun Kennedy

The implementation of President Biden’s Executive Order 14042: Ensuring Adequate COVID Safety Protocols for Federal Contractors (“EO”) continues to evolve and will likely be refined and updated over the coming weeks and months.  In a prior alert, we covered guidance issued by the Safer Federal Workforce Task Force’s (the “Task Force”) on September 24, 2021 detailing requirements for implementation of the EO.

On November 1, 2021, the Task Force released additional FAQs to clarify its prior guidance.  We highlight below some of the key takeaways from the recently released FAQs:

Ryan Lundquist

1. Is a 100% vaccination rate required by December 8, 2021?

In what will likely be welcome relief, the FAQs introduced a certain degree of flexibility for covered contractors to comply with the EO’s vaccination requirements.

The FAQs instructed agencies to assess the degree to which a covered contractor is taking good faith steps to comply with the EO.  When a covered contractor is working in good faith toward enforcing compliance with the EO and workplace safety protocols, the agency “should work with them to address the challenges.”  However, where the agency determines a contractor is not “taking steps” to comply, the contracting officer should take “significant actions, such as termination of the contract.” Read more >>

June 13, 2019

What’s Up In New Mexico Workplace Law

Little V. West

By Little v. West

Gov. Michelle Lujan Grisham signed bills into law from the 2019 legislative session that will impact private employers in New Mexico. Below is a summary of several bills that change the law applicable to private employers. Employers should consult with legal counsel and consider reviewing and updating employment policies, procedures and handbooks.

‘Right to work’

House Bill 85 rejects “right to work” as a matter of statewide policy and instead establishes that an employer or union in New Mexico can require membership in a union as a condition of employment. HB 85 also prohibits local governments in New Mexico from enacting “right to work” ordinances, invalidating the “right to work” ordinances several counties enacted.

Read more >>

July 17, 2018

New Colorado Data Privacy Requirements Apply to Employers

Dustin Berger

By Dustin D. Berger

Organizations that employ workers in Colorado will soon face more stringent data privacy requirements, thanks to new legislation signed into law by Governor Hickenlooper at the end of May. This new law, HB 18-1128, imposes new obligations on all covered entities in the state that maintain documents that contain personal identifying information of Colorado residents. These obligations go into effect on September 1, 2018. Here are the highlights of the new requirements and steps employers should take to comply.

Practically All Employers Will Be Affected by the New Law

The new law applies to a “covered entity,” which is essentially defined as any individual or entity “that maintains, owns, or licenses personal identifying information”—regardless of how much business the covered entity does within Colorado. The statute defines “personal identifying information” as “a social security number; a personal identification number; a password; a pass code; an official state or government-issued driver’s license or identification card number; a government passport number; biometric data; an employer, student, or military identification number; or a financial transaction device.”

Because virtually all employers maintain information on their employees that is considered personal identifying information, such as social security numbers, employer identification numbers, passport numbers, or driver’s license numbers, employers with Colorado employees will be subject to the requirements of the new law.

The key provisions in the new law are its requirements that covered entities: (1) maintain reasonable security procedures and practices; (2) establish and follow a written policy for the destruction of personal information when it is no longer needed; (3) ensure that third-party service providers handling their personal information have implemented and maintained reasonable security procedures and practices; and (4) follow the law’s notification procedures when it becomes aware that a security breach “may have” occurred.

1.         Reasonable Security Procedures and Practices

HB 18-1128 creates a new statutory section, C.R.S. § 6-1-713.5, that requires covered entities to implement and maintain reasonable security procedures and practices to protect personal identifying information from unauthorized access, use, modification, disclosure, or destruction. While not specifying exactly what type of security procedures are required, the new provision states that such procedures must be appropriate to the nature of the personal identifying information and the nature and size of the business and its operations.

If a covered entity discloses personal identifying information to a third-party service provider, it must require that the service provider implement and maintain reasonable security procedures and practices, as outlined in number 3 below. 

2.         Disposal of Documents Containing Personal Identifying Information

Colorado has had a statute governing the disposal of documents containing personal identifying information since 2004, but the new legislation amends C.R.S. § 6-1-713 to expand covered entities’ responsibilities with respect to personal identifying information. Now, the disposal requirements apply to documents that are kept electronically as well as those kept in paper form. The new law also requires that covered entities implement a written policy specifying that the entity shall destroy (or arrange for destruction of) the documents by making the information unreadable or completely indecipherable.

3.         Ensure Third-Party Service Providers Have Reasonable Security Procedures

If a covered entity discloses personal identifying information to a third-party service provider, the covered entity must now require the service provider implement and maintain reasonable security procedures and practices that are reasonably designed to help protect the information from unauthorized access, use, modification, disclosure, or destruction, as appropriate to the nature of the information disclosed to the service provider. A third-party service provider is defined as an entity that has been contracted to maintain, store, or process personal identifying information on behalf of a covered entity.

4.          Security Breach Notification Requirements Enhanced

The new law significantly amends Colorado’s statute governing notifications of a security breach, C.R.S. § 6-1-716. A “security breach” is defined, in relevant part, as the unauthorized acquisition of unencrypted computerized data that compromises the security, confidentiality, or integrity of personal information maintained by a covered entity.

Under the new provisions, a covered entity has no more than 30 days to provide notice of a security breach. Notice must be made to affected Colorado residents in a very specific manner including notice by mail, telephone, electronically, or by substitute notice, and must contain a myriad of information regarding the breach and options that are available to the affected person. If a breach is reasonably believed to have affected 500 Colorado residents or more, the entity also must provide notice of the breach to the Colorado Attorney General.

And, unlike the previous law, the 30-day period begins to run when the covered entity becomes aware that a “security breach may have occurred.” In the prior version of the law, the 30-day period did not begin to run until the covered entity became aware of a breach. This change is likely to increase the pressure on covered entities to timely respond to indicators and predictors of a security breach. 

Sanctions 

Employers who violate the law can face enforcement proceedings from the Colorado Attorney General or the district attorneys of the state. These proceedings can result in civil penalties of up to $2,000 per affected person, up to a maximum of $500,000 per incident. They also can be liable directly to affected persons who are harmed by the violation.

Steps for Employers to Take

The new data security requirements go into effect on September 1, 2018, so employers who maintain personal identifying information on Colorado residents have little time to prepare to comply. Steps to take include:

  • Develop and implement reasonable practices designed to protect personal identifying information from unauthorized access, use, or disclosure (e.g., password-protection, encryption, etc.) that are commensurate with the sensitivity of the personal identifying information.
  • Create a written policy regarding the destruction and disposal of paper and electronic documents containing personal identifying information.
  • Review agreements with third-party service providers to ensure that service providers have reasonable procedures to protect the security of personal identifying information provided to them.
  • If you have a security incident response plan, update it to reflect the changes in the law.
  • If you do not have a security incident response plan, prepare one to ensure that you can meet the new law’s notification requirements.

February 27, 2018

Colorado General Assembly To Consider Immigration, Paid FMLA, and Other Employment Bills

Emily Hobbs-Wright

By Emily Hobbs-Wright

The Colorado General Assembly convened on January 10, 2018 for its regular session. Between now and its scheduled May 9, 2018 adjournment date, the House and Senate will consider numerous employment-related bills. Although some may not get out of committee, and others may not get enough votes to pass, the bills highlighted here provide a glimpse into what our legislature may be considering for our state’s employers.

Immigrant Work-Status Bill

Introduced on February 5, 2018, House Bill18-1230 would create a purple card program that would allow certain persons who came to the United States without legal documentation to work legally in Colorado. To be eligible for the program, a person must have no felony convictions for the three years immediately prior to their application, and they must either have been brought to the U.S. as a minor, or paid state income taxes for the two years immediately prior to their application to the program. Sponsored by Representative Dan Pabon (D-Denver), the bill has been assigned to the House Judiciary Committee.

FAMLI Family and Medical Leave Insurance Program

House Bill18-1001 would create the family and medical leave insurance program (FAMLI) within the Colorado Department of Labor and Employment. The program would offer partial wage-replacement benefits to eligible employees who need to take leave from work because they are unable to work due to a serious health condition or need to care for a new child or a family member with a serious health condition.

The program would be funded through employee contributions, based on a percentage of the employee’s annual wages, not to initially exceed 0.99%. The premiums would be deposited into the FAMLI fund to be paid out to eligible individuals. As introduced, the bill would apply to all employers in the state engaged in activities affecting commerce and only requires that the employer have at least one employee to be covered. The maximum number of weeks of FAMLI benefits payable to an eligible individual would be 12 weeks in any year. The bill has been assigned to the Finance Committee. Although the bill has a decent chance of passing the House, it will likely face opposition in the Republican-controlled Senate.

Non-Compete Exemption for Physician To Provide Continuing Care For Rare Disorders

Colorado’s statute that governs non-compete agreements specifically addresses non-competes for physicians. C.R.S. §8-2-113. Although covenants not to compete that restrict a physician’s post-employment ability to practice medicine are void, agreements may require a physician to pay damages in an amount reasonably related to the injury suffered by reason of the termination of the agreement are enforceable. Senate Bill18-082 would create an exemption allowing a physician, after termination of an agreement, to continue to care for any patient with a rare disorder without liability for damages. As of the time of this writing, the bill has passed the Second Reading in the Senate. It needs to pass on Third Reading before heading to the House.

Minimum Wage Waiver

House Bill18-1106, introduced by Representative Dave Williams (R-El Paso), would allow an applicant for employment, or a current employee to negotiate a different minimum wage than what is required under the Colorado Constitution. The bill would require employers to post a notice informing employees of the right to negotiate wages. Unsurprisingly, this bill already failed in committee.  (Employers should remember that neither an employer nor an employee has the authority to waive minimum wage and overtime pay under federal or state wage law.)

Right-to-Work Bill

Although dead on arrival, Representative Justin Everett  (R-Jefferson) introduced a right-to-work bill, House Bill 19-1030, that would prohibit employees from being required to join, remain in, or pay dues to a union as a condition of employment. Similar bills have been introduced almost every session, and like those before it, this one was shot down. The bill was rejected in committee and will not make it to the House floor for a vote. With Democrats controlling the Colorado House, there is virtually no chance that a right-to-work bill would see the light of day.

More To Come

We will continue to monitor labor and employment developments at the Colorado legislature and will report back in future posts.

December 26, 2017

The New Tax Bill & Employee Benefits: What is Changing? What is Not?

By Molly Hobbs and Brenda Berg

On December 22, 2017, the President signed into law the Republican tax bill that was passed by Congress just days earlier. Beyond cutting individual tax rates temporarily and slashing corporate taxes to 21 percent permanently, the tax bill includes some important changes to the taxation of certain employee benefits.

Listed below are the major changes to employer-provided benefits under the final tax bill:

  • Revised: Time to repay “offset” employer-sponsored retirement plan loans.
    • Currently, retirement plan loans are generally accelerated (i.e., immediately due and payable) when the plan terminates or the participant terminates employment. If the loan is not repaid, the plan will “offset” the loan against the participant’s account. This loan offset may be rolled over by making an equivalent contribution to an IRA or another qualified plan, but this must be done within 60 days of the date of the offset.
    • Beginning in 2018, the period to roll over a loan offset is extended to the individual’s due date for the tax return for the year in which the offset occurred (including extensions).
  • Repealed: Employer deduction for qualified transportation fringe benefits, including commuting expenses.
    • Currently, an employer can deduct the cost of certain transportation fringe benefit provided to employees (i.e., parking, transit passes, and vanpool benefits), even though such benefits are excluded from the employee’s income.
    • Beginning in 2018, the employer deduction for qualified transportation fringe benefits is fully disallowed. In addition, except as necessary for ensuring the safety of an employee, the employer deduction for providing transportation or any payment or reimbursement for commuting to work is disallowed.
    • These changes do not appear to prevent employers from sponsoring a qualified transportation plan to allow employees to elect to have certain transportation costs paid on a pre-tax basis.
  • Repealed: Employee exclusion of bicycle commuting reimbursements.
    • Currently, an employee can exclude from income qualified bicycle commuting reimbursements of up to $20 per qualifying bicycle commuting month. These amounts are also excluded from wages for employment tax purposes.
    • Beginning in 2018, the qualified bicycle commuting reimbursement exclusion is fully disallowed.
    • Going forward, employers can still maintain a program for bicycle commuting, however, reimbursements under such program will be taxable to the employee.
  • Repealed: Employer deduction for entertainment, amusement and recreation provided to employees.
    • Currently, an employer can fully deduct expenses for recreational, social, or similar activities primarily for the benefit of non-highly compensated employees, provided such activities directly relate to the active conduct of the employer’s business.
    • Beginning in 2018, this deduction is fully disallowed. The employee exclusion remains unchanged.
  • Partially Repealed: Employer deduction for meals, food and beverages provided to employees.
    • Currently, an employer can fully deduct any food and beverage expense that can be excluded from an employee’s income as a de minimis fringe benefit.
    • Beginning in 2018, there will be a 50% limitation on the deduction for food and beverages that can be excluded from an employee’s income as a de minimis fringe benefit, including expenses for the operation of an employee cafeteria located on or near the employer’s premises. The employee exclusion remains unchanged.
  • Partially Repealed: Employee exclusion of value of certain types of employee achievement awards and the employer’s related deduction.
    • Currently, an employer can deduct up to $400 (or up to $1,600 in the case of certain written nondiscriminatory achievement plans) of the value of certain employee achievement awards for length of service or safety. The employee receiving such award can exclude the award from income to the extent that the value of the award does not exceed the employer’s deduction.
    • Beginning in 2018, the employee’s exclusion and employer’s deduction for employee achievement awards will not apply to cash, gift coupons/certificates, vacations, meals, lodging, tickets to sporting or theater events, securities, and “other similar items.” However, an employee can still exclude (and an employer can still deduct) the value of other tangible property and gift certificates that allow the recipient to select tangible property from a limited range of items pre-selected by the employer.
  • Repealed: Employee exclusion from income of employer-provided qualified moving expense reimbursements.
    • Currently, an employee can exclude qualified moving expense reimbursements paid by his or her employer for the reasonable expenses of moving. These amounts are also excluded from wages for employment tax purposes.
    • Beginning in 2018, the qualifying moving expense reimbursement is fully taxable to the employee, except for members of the Armed Forces on active duty who move pursuant to a military order.
  • Enacted: Employer tax credit for employers providing paid family and medical leave.
    • Beginning in 2018, an employer that offers at least two weeks of annual paid family and medical leave, as described by the Family and Medical Leave Act (FMLA), to all “qualifying” full-time employees (and a proportionate amount of leave for non-full-time employees) will be entitled to a tax credit. The paid leave must provide for at least 50% of the wages normally paid to the employee. “Family and medical leave” does not include leave provided as vacation, personal leave, or other medical or sick leave.
    • A “qualifying employee” is an employee who has been employed by the employer for at least one year, and whose compensation for the preceding year did not exceed 60% of the compensation threshold for highly compensated employees (i.e., compensation did not exceed $72,000).
    • The credit will be equal to 12.5% of the amount of wages paid to a qualifying employee during such employee’s leave, increased by .25% for each percentage point the employee’s rate of pay on leave exceeds 50% of the wages normally paid to the employee (but not to exceed 25% of the wages paid).

In addition, employers should be aware that the tax bill eliminates the Affordable Care Act’s (“ACA”) individual mandate penalty starting in 2019. The individual mandate requires most individuals (other than those who qualify for a hardship exemption) to carry a minimum level of health coverage. Currently, individuals who do not enroll in health coverage can incur a tax penalty. Beginning in 2019, individuals will still technically be required to carry health coverage, but will no longer be penalized for failing to do so. This change to the ACA’s individual mandate could indirectly impact employers. For example, if fewer employees avail themselves of Exchange coverage and the related subsidies, an employer’s penalty risk under the ACA’s employer mandate will decrease. The lack of individual penalty could also destabilize the Exchange, resulting in more individuals looking to their employers for coverage.

Although earlier drafts of the tax bill called for repeal or modification, the following benefit provisions remain unchanged by the final tax bill:

  • The hardship distribution safe harbor rules incorporated into many retirement plans (proposals would have eased hardship rules);
  • The employer-provided child care credit;
  • Dependent Care Assistance Programs (DCAPs);
  • Adoption assistance programs;
  • Employer-provided housing; and
  • Educational assistance programs.

Takeaways for Employers:

In light of changes to employer-provided benefits under the final tax bill, employers should take the following actions:

  • Determine whether any changes are needed to retirement plan loan distribution paperwork regarding tax and rollover consequences.
  • Review qualified transportation plan(s) in light of the changes to qualified transportation fringe benefits and bicycle commuting reimbursements.
  • Review any company policies that involve recreational, social, or similar activities for employees, employee meals, employee achievement awards, and/or employee moving expenses.
  • Adjust payroll reporting as necessary and determine whether any taxable amounts are now eligible compensation for retirement plan deferrals and employer contributions.
  • Consider utilizing the new tax credit for paid family and medical leave.

May 3, 2017

Is Comp Time Coming To The Private Sector?

By Mark Wiletsky

Employees in the private sector may have the option of earning compensatory time off in lieu of overtime pay for hours worked in excess of forty hours per week. The U.S. House of Representatives recently passed the Working Families Flexibility Act of 2017, H.B. 1180, which would amend the Fair Labor Standards Act (FLSA) to permit employees in the private sector to receive compensatory time off at a rate of not less than one and one-half hours for each hour of overtime worked. The bill now heads to the Senate for consideration.

Eligibility For Comp Time

Under the FLSA, compensatory time in lieu of overtime pay has long been permitted for public sector government employees. But non-government, private sector employees have not had the option of accruing comp time as the FLSA requires that private sector employers compensate overtime only through pay. Under this bill, private sector employees who have worked at least 1,000 hours for their employer during a period of continuous employment with the employer in the previous 12-month period may agree to accrue comp time instead of being paid overtime pay.

Employee Agreement For Comp Time

Under the bill, an employer may provide comp time to employees either (a) in accordance with the provisions of an applicable collective bargaining agreement for union employees, or (b) in accordance with an agreement between a non-union employee and the employer. In the case of non-union employees, the agreement between the employee and the employer must be reached before the overtime work is performed and the agreement must be affirmed by a written or otherwise verifiable record maintained by the employer.

The agreement must specify that the employer has offered and the employee has chosen to receive compensatory time in lieu of monetary overtime compensation. It must also specify that it was entered into knowingly and voluntarily by such employee. Requiring comp time in lieu of overtime pay cannot be a condition of employment.

Limits On And Pay-Out Of Accrued Comp Time

The bill specifies that an employee may not accrue more than 160 hours of comp time. No later than January 31 of each calendar year, the employer must pay out any unused comp time accrued but not used during the previous calendar year (or such other 12-month period as the employer specifies to employees). In addition, at the employer’s option, it may pay out an employee’s unused comp time in excess of 80 hours at any time as long as it provides the employee at least 30-days’ advance notice. An employer may also discontinue offering comp time if it provides employees 30-days’ notice of the discontinuation.

The bill provides that an employee may terminate his or her agreement to accrue comp time instead of receiving overtime pay at any time. In addition, an employee may request in writing that all unused, accrued comp time be paid out to him or her at any time. Upon receipt of the pay-out request, an employer has 30 days to pay out the comp time balance. Upon termination of employment, the employer must pay out any unused comp time to the departing employee. The rate of pay during pay-out shall be the regular rate earned by the employee at the time the comp time was accrued, or the regular rate at the time the employee received payment, whichever is higher.

Employee Use of Comp Time

Under the bill, employers must honor employee requests to use accrued comp time within a reasonable period after the request is made. Employers need not honor a request if the use of comp time would unduly disrupt the operations of the employer. Employers are prohibited from threatening, intimidating, or coercing employees either in their choice in whether to select comp time or overtime pay, or in their use of accrued comp time.

Will It Pass?

The bill passed the House 229-197, largely along party lines with all Democrats and six Republicans voting against it. Reports suggest that although Republicans hold 52 seats in the Senate, they will need at least eight Democrats to vote in favor of the bill to avoid a filibuster. Supporters of the bill urge that it offers workers more flexibility and control over their time off. Those who oppose the bill say it could weaken work protections as it offers a promise of future time off at the expense of working overtime hours for free. This is not the first time that federal comp time legislation has been proposed, so we will have to see if the Senate can line up sufficient votes to pass it this time around. Stay tuned.

February 3, 2017

Wyoming Legislature Convenes And Employment Bills Are On Deck

By Brad Cave

The Wyoming Legislature convened its general session on January 10, 2017. A bunch of interesting employment-related measures have been filed for the Legislature’s consideration. Some make good sense; others not so much. Employers can follow the progress of these proposals through the Legislature’s website at legisweb.state.wy.us, and we will update you as the session progresses.

Unemployment and Workers Compensation

House Bill 71 would permit the Unemployment Insurance Division to establish an Internet-based communication system to transmit determinations, decisions or notices when the claimant or the employer agree to receive those documents through the system. The bill would establish rules for determining when documents are delivered using such a system and acknowledgement of delivery under the system. No action has been taken on this proposal.

House Bill 84 would authorize the Department to enter into installment payment agreements with employers who are delinquent on the payment of workers compensation premiums, lowers the interest rate on delinquencies to 1%, and gives the Department some discretion on whether to sue or shut down an employer who is delinquent in paying premiums. The House Labor, Health and Social Services Committee unanimously adopted a “do pass” recommendation for this bill.

Similarly, House Bill 85 authorizes the Department of Workforce Services to enter into agreements with employers for the repayment of delinquent unemployment contributions of up to twelve months in duration. The bill would also reduce the interest rate for delinquent contributions from 2% to 1%. This bill has been referred to the House Labor, Health and Social Services Committee for consideration, but no action has been taken by the committee.

Senate File 101 would exempt seasonal employment from unemployment benefits and premiums. The measure would define seasonal employment as employment limited to 20 weeks in any 12 month period, and exclude seasonal employment and wages earned from such employment from unemployment insurance purposes. This proposal has been referred to the Senate Labor, Health and Social Services Committee.

Wages 

In 2015, the Legislature changed Wyoming law to permit employers to make final wage payments to employees on the employer’s regular payroll schedule, regardless of the reason for termination. House Bill 92 amends that schedule to require employers to comply with any time specified under a collective bargaining agreement between the employer and its employees’ union. The bill passed the House without opposition, and is presently awaiting action by the Senate.

House Bill 140 is a perennial offering to raise the minimum wage. The amount of the proposed increase has changed from year to year. This year’s bill calls for a minimum wage of not less than $9.50 per hour, and a training wage for the first six month’s of employment of $7.50. Under the measure, tipped employees would receive a minimum wage of $5.50, not considering tips, and at least $9.50 per hour with tips. Tipped employees would also be able to file a claim for three times the amount the employer owes if the employer fails to make up the difference between the general minimum wage and the tipped employee minimum wage, when the employee’s tips do not cover the difference. The bill is awaiting action by the House Labor, Health and Social Services Committee.

House Bill 209 would require the Department of Workforce Services to update a 2002 study about gender wage disparity in Wyoming. The bill would require the study to analyze disparities on the basis of county and occupation, and to opine on the causes, impacts, solutions and benefits of resolving any such disparities. This proposal has been introduced, but no action or committee assignment has been made.

Veterans, Military Service and Military and Veterans Spouses

The Joint Transportation, Highways and Military Affairs Interim Committee proposed a trio of veterans’ preference measures:

Senate File 53 would require that all public employers, and all private employers hiring for public works projects, give veterans a “preference prior to the interview process.” The measure would amend current law to direct that, if a public employer uses a numerical scoring system for applicants, veterans shall be granted a 5% advantage over any nonveteran, and, if the veteran has a service-connected disability, a 10% advantage. If no scoring system is used, a qualified veteran shall be given preference over any equally qualified nonveteran candidate.  This file would define veteran as any honorably discharged service member or a serving spouse of any deceased service member. After several attempts to amend the proposal, it passed the Senate by a large majority and is awaiting action in the House.

Senate File 54 would create a preference for the hiring of military spouses by all public entities and private employers with contracts on public works projects. A military-spouse applicant would be preferred for appointment if the applicant possesses the business capacity, competency, education or other qualifications for the position. If a public entity uses a numeric scoring system, the military spouse shall be allowed a 5% advantage over any competitor-applicant. If no numeric scoring system is used for a position with a public entity, the military spouse shall be given preference over equally qualified candidates. This file passed the Senate by a narrow five-vote majority, and is waiting for consideration by the House.

Senate File 55 would have amended the Wyoming Fair Employment Practices Act to prohibit discrimination against an applicant or employee because that person is a military spouse. A military spouse is an individual married to an active uniformed military member or member of the national guard or any guard reserve or auxiliary component. The Senate defeated this measure by a vote of 11 to 19.

Finally, House Bill 101 would permit, but not require, school district boards to create a hiring preference for veterans and surviving spouses of veterans. This bill would also clarify that the current law requiring veterans’ preferences does not apply to school districts. The House Education Committee gave this bill a unanimous “do pass” recommendation, and it is working its way through the process on the House floor.

Franchisor Protection 

Senate File 94 appears to be a reaction to the National Labor Relations Board’s efforts to treat the employees of franchisees, most notably the employees of various McDonald’s franchisees around the country, as employees of the franchiser corporation. The measure declares that franchisee employees could not be deemed an employee of a franchiser for any purpose under Title 27 of the Wyoming Statutes, which would include unemployment, workers’ compensation, fair employment, and the wage payment statutes. The measure has been assigned to the Senate Corporations Committee for consideration.

Waiver of Governmental Immunity for Health Care Whistleblower Claims 

Wyoming law currently prohibits discrimination against employees of licensed health care providers who report any violation of state or federal law to the Wyoming Department of Health. However, most hospitals in Wyoming are operated by governmental entities which are immune from liability under the Wyoming Governmental Claims Act for any claim unless the claim is specified as an exception under that Act. House Bill 142 would amend the Governmental Claims Act to create an exception for discrimination against whistleblowers who are employed by public hospitals. This bill passed the House with a strong majority, and is waiting for action in the Senate.

Early Retirement for State Employees 

Senate File 95 would create a one-time early retirement program  for eligible state employees. The program will apply only to employees who elect to accept the benefit between April 1 through June 30, 2017. Eligible employees would be defined as those between 52 and 55 years of age, with 15 to 18 years of services, such that their age and years of service total at least 70. Eligible employees who accept the offer will receive an enhanced monthly retirement benefit until age 65, and other insurance related benefits. The measure would also restrict the ability of the various state agencies to fill any position vacated by an eligible employee who accepts the early retirement benefit. The measure is currently waiting for consideration by the Senate Revenue Committee. 

Resistance to Federal Workplace Safety Regulations 

House Bill 70 is an effort to resist efforts by the United States Occupational Safety and Health Administration (OSHA) to regulate in certain areas. The measure contends that OSHA has “expanded its regulations of highly hazardous chemicals on questionable authority.” This measure would authorize the Governor and the Attorney General to defend the interests of Wyoming citizens against regulations proposed by federal OSHA in areas of “questionable” federal authority. The measure does not specify those areas. The House passed this bill with a strong majority, and it is waiting for consideration in the Senate.

Civil Rights

House Bill 135 would create the Government Nondiscrimination Act, which would prohibit any government employer from discriminating against any person because the person believes or acts based on a religious belief or moral conviction that marriage is a union of one man and one woman, and that gender is a person’s biological sex as determined by anatomy and genetics at the time of birth. The measure would have far-reaching implications in various areas of state law beyond employment protections, and would also prohibit any employment-related actions for those prohibited reasons. The measure would create a legal claim for violation of the statute, with broad remedies including compensatory damages, and would eliminate the immunity of governmental entities for violations of the proposed statute. This bill has been referred to the House Judiciary Committee for consideration.

Joint Resolution SJ0001 has been proposed to create an individual right of privacy in the Wyoming Constitution. The amendment would read that the “right of individual privacy . . . shall not be infringed without the showing of a compelling state interest.” The resolution does not explain how the amendment would apply to the relationship between governmental entities and their employees with respect to internal investigations, drug testing or other aspects of the public employment relationship. This resolution was received for introduction in the Senate, but no action has been taken on it since introduction.

Joint Resolution SJ004 has been proposed before the Senate to put a resolution before Wyoming voters to amend the Wyoming Constitution. The constitutional amendment would prohibit discrimination or preferences  in public employment, contracting, education and a variety of other public services and activities on the basis of race, sex, color, ethnicity or national origin. The amendment would apply to all public entities. This resolution was received for introduction in the Senate, but no action has been taken on it since introduction.

Bottom Line 

We encourage Wyoming employers to keep tabs on these bills, and contact your Senator or Representative if these impact your organization or industry. The legislative session adjourns in early March, so additional measures may be introduced. We will continue to update you as the session continues over the next month.