June 15, 2021

CO Clarifies Employers’ Obligation to Provide Public Health Emergency Leave in 2021

Laurie Rogers

In late 2020, the Colorado Department of Labor and Employment (CDLE) issued guidance confirming the COVID-19 pandemic had triggered the Healthy Families and Workplaces Act’s (HFWA) provision entitling all employees to up to 80 hours of supplemental public health emergency leave in 2021 (see CDLE Info Sheet # 6C). While the guidance alerted employers to their obligation to provide the benefit, it left several unanswered questions about the amount of emergency leave part-time and new employees are entitled to receive under the HFWA. On February 23, 2021, the department issued revisions to the wage protection rules answering the questions (see 7 CCR 1103-7).

General requirements under the HFWA

As of January 1, 2021, the HFWA requires most employers with 16 or more employees to let them accrue up to 48 hours of paid sick and safe leave annually. They may take the leave for various health- and safety-related needs. On January 1, 2022, all covered employers, including those with fewer than 16 employees, will have to provide paid sick and safe leave to their employees (for more details, see CDLE Info Sheet # 6B). Read more >>

March 24, 2021

Changing of the Guard: NLRB Precedent Under Biden Administration

by Steven Gutierrez

Given the recent, whiplash-like reversals of labor law precedent by the National Labor Relations Board (NLRB) (depending on which presidential administration is in power), employers naturally wonder if the current version of the NLRB under President Joe Biden will present a similar about-face from decisions made under the Trump administration. While you can safely assume the NLRB will be more prolabor under the Biden administration, a recent decision from the D.C. Circuit, emphasizing the importance of precedent in Board decisions, may assuage some fears of ongoing uncertainty in labor-management relations.

Background on federal labor relations law, generally

National Labor Relations Act (NLRA). The NLRA was enacted in 1935 to promote employees’ and employers’ rights, encourage collective bargaining, and curtail certain private-sector labor and management practices that can harm the general welfare of workers, businesses, and the U.S. economy. Congress believed some employers’ refusal to let employees organize or accept collective bargaining led to industrial strife or unrest, which adversely obstructed commerce. Read more >>

March 22, 2021

New CO Guidance Concerning Paid Sick Leave and Job Posting Requirements

by Mark Wiletsky

Mark Wiletsky

It’s a brave new world for Colorado employers. The state now requires paid sick leave for employees, and it established unique requirements for job postings and promotional opportunities. In December, the Colorado Department of Labor and Employment (CDLE) amended its rules and issued new guidance with respect to the laws. The amended rules and guidance provide important information for all employers about how the CDLE interprets and will enforce the new laws.

Equal Pay for Equal Work Act (EPEWA)

The EPEWA became effective January 1, 2021. Among other things, it requires employers to pay men and women equally for the same or substantially similar work, subject to limited exceptions. The EPEWA also contains significant requirements with respect to job postings and promotional opportunities:

Job postings must contain salary and benefits information; and
Promotional opportunities must be announced to all Colorado employees on the same calendar day and before the decision is made.

In December, the CDLE issued Interpretive Notice and Formal Opinion (INFO) #9, which provided additional guidance on job postings and promotional opportunities. Read more >>

December 22, 2020

Update: EEOC Issues Employer Guidance on COVID-19 Vaccinations

By Mark Wiletsky

Mark Wiletsky

In the article, May Employers Mandate COVID-19 Vaccines?, we discussed legal and practical considerations for employers contemplating mandatory COVID-19 vaccines for their employees. We noted that the Equal Employment Opportunity Commission (“EEOC”) and other federal and state authorities might be providing updated guidance on this issue.

On December 16, 2020, the EEOC issued new guidance confirming that, although employers may likely mandate COVID-19 vaccines without violating federal anti-discrimination laws (and assuming accommodations are made for employees who cannot take vaccines for qualifying medical or religious reasons), the safest approach—at least for employers outside of certain high-risk fields like the healthcare industry—may be to make vaccinations voluntary, but highly encouraged. Read more >>

December 21, 2020

Rumors, Innuendo Lead Wyoming Highway Patrol to Face Sexual Harassment Trial

by Brad Cave

Brad Cave

Most people know overtly sexual comments are likely to violate their employer’s rules and could lead to sexual harassment claims. But many don’t understand the comments are a problem not just because they’re sexual. That’s because the sexual content can be used as evidence to show other nonsexual negative treatment was motivated by discriminatory intent. As a result, the sex-based misconduct is just one aspect of the working environment you must consider—whether overtly sexual or not—to determine whether an employee was subject to a hostile work environment.

In the following opinion from the 10th Circuit, you can learn more about how employees should be trained to avoid harassment and how supervisors should deal with rumors and other inappropriate behavior. Read more >>

December 15, 2020

Colorado’s Equal Pay for Equal Work Act effective January 2021

by Steven Gutierrez

Steven Gutierrez

Among the most significant employment-related bills passed by the Colorado General Assembly during its 2019 legislative session was Colorado’s new Equal Pay for Equal Work Act (EPEWA). The Act, which will go into effect January 1, 2021, for all public and private employers in Colorado, imposes equal pay obligations extending beyond those of the federal Equal Pay Act (EPA). The EPEWA is intended to “ensure that employees with similar job duties are paid the same wage rate regardless of sex” and reflects the Colorado General Assembly’s response to findings that the wage gap between men and women has long persisted even after the federal EPA attempted to eliminate it nearly 60 years ago.

Why was the EPEWA enacted?
Many employee organizations have long contended that despite passage of the federal EPA in 1963—which was intended to remedy pay disparities based on sex a year before the federal Civil Rights Act of 1964—unlawful pay disparities have nonetheless persisted. Many have attributed the persistence to the federal EPA’s catch-all provision permitting wage disparities based on any “factors other than sex,” which advocates contend is too vague and permits wage disparities for too many reasons. Read more >>

December 11, 2020

May Employers Mandate COVID-19 Vaccines?

By Steve Gutierrez

Steven Gutierrez

Given pending anticipated FDA approval of Pfizer’s COVID-19 vaccine, and encouraging vaccine results from Moderna and AstraZeneca, many employers are wondering whether they may legally mandate vaccinations for their employees. The answer is likely yes, subject to important qualifications. Mandatory vaccines have been commonplace in the healthcare industry for years, and the EEOC has issued past guidance suggesting that employers may mandate vaccines assuming they provide exemptions for employees who cannot take the vaccines for medical or religious reasons. OSHA has issued similar guidance.

While employers may likely mandate vaccinations for their employees, doing so raises a host of legal and practical considerations that employers must consider before any such programs are implemented. These include:

The need to accommodate employees who, because of a medical condition, cannot take the vaccine;
The need to accommodate employees who, because of a sincerely held religious belief, cannot take the vaccine;
Potential liability concerns under workers’ compensation and other laws if employees take the vaccine and develop an adverse reaction;
Potential labor law and related protections for employees who may oppose taking a vaccine based on perceptions that it is unsafe; and
Practical concerns like developing—and evenly enforcing—policies that discipline employees who do not take vaccines.

September 24, 2020

Colorado Court of Appeals: Terms of Employer’s Vacation Policy Control Whether Accrued, Unused Vacation Time Must Be Paid Out at Separation

By Steven Gutierrez and Jeremy Merkelson, Holland & Hart LLP

Steve Gutierrez

The Colorado Court of Appeals issued a very favorable decision to employers today in a case litigated by Steve Gutierrez and Brad Williams of Holland & Hart, LLP. The case addressed an unsettled question under the Colorado Wage Claim Act (“CWCA”)—namely, whether accrued, unused vacation time must be paid out at separation of employment where an employer’s vacation policy states that it will not be. The Court of Appeals held that such time need not be paid out at separation, echoing a similar decision by the Court of Appeals in a similar case last year. The decision issued today—Blount Inc. v. Colorado Department of Labor and Employment, Division of Labor Standards and Statistics—adds fodder to a judicial debate over payout of vacation time that is likely to be resolved by the Colorado Supreme Court in 2021.

The CWCA requires that any unpaid wages and compensation must be paid to employees within specific time periods after their separation of employment. Amongst the wages and compensation that must be paid out is “vacation pay earned and determinable in accordance with the terms of any agreement between the employer and employee.” Colorado law has long been unsettled regarding whether this provision requires payout of any vacation time after it is accrued (e.g., on the theory that the vacation time is then “earned” and cannot lawfully be denied based on a separate section of the CWCA) or whether the terms of an employer’s specific vacation policy determine whether or not vacation time must be paid out at separation of employment (and if so, under what circumstances). The Colorado Department of Labor and Employment, Division of Labor Standards and Statistics (the “Division”), has long taken the position that vacation time once “earned” must always be paid out at separation, and that vacation policies providing otherwise are illegal. However, the Division has also issued inconsistent guidance and administrative decisions on wage claims that call this position into question—including inconsistent guidance on whether “use-it-or-lose-it” vacation policies are legal under its interpretation of the CWCA. Read more >>

September 23, 2020

New Department of Labor Proposed Rule Makes It Easier to Classify Workers as Independent Contractors under the Fair Labor Standards Act

By Devra Hake and Laurie Rogers, Holland & Hart LLP

Laurie Rogers

On Tuesday, September 22, the United States Department of Labor’s Wage and Hour Division announced a proposed rule that clarifies whether a worker is an employee or an independent contractor under the Fair Labor Standards Act (FLSA). The proposed rule adds a new Part 795 to the Code of Federal Regulations. Employees are subject to the FLSA’s minimum wage and overtime protections, whereas independent contractors are not. In the past, courts across the nation have implemented varying multifactor tests to determine whether workers are employees or independent contractors. These tests can be unwieldy and make it challenging for companies to predict outcomes. The Department of Labor’s proposed rule clarifies that the department will use the “economic reality test,” and it identifies two core factors and three guideposts that make up the test. The economic reality test is more business-friendly and makes it easier for employers to classify workers as independent contractors.

The Economic Reality Test

The “economic reality test” is a test to determine whether a worker is economically dependent on a company for work or if the worker is in business for him or herself. If the worker is economically dependent, the worker is an employee. If the worker is in business for him or herself, the worker is an independent contractor. The proposed rule identifies two “core factors” that should be considered when deciding whether a worker is economically dependent:

The nature and degree of the worker’s control over the work. To the extent the worker exercises substantial control over the performance of the work, including setting work hours and selecting work projects, this factor weighs in favor of the worker being an independent contractor. To the extent the putative employer exercises substantial control over the performance of the work, including controlling work hours, workload, and requiring exclusivity, this factor weighs toward the worker being an employee.
The worker’s opportunity for profit or loss based on initiative and/or investment. To the extent a worker has an opportunity to earn more or less profit based on the worker’s own investment in the business or initiative (for example, business acumen or skill), the factor weighs toward independent contractor status. To the extent a worker’s profit or loss is based on the worker’s ability to work more efficiently or the putative employer giving the employee more or less hours, this factor favors classification of the worker as an employee.

September 1, 2020

Colorado Legislature Passes Paid Sick Leave, Other Bills Affecting Employers

by Mark Wiletsky, Holland & Hart, LLP

Mark Wiletsky

In an extraordinary legislative session interrupted by the COVID-19 pandemic—which led to a Colorado Supreme Court ruling approving lawmakers’ right to reconvene after initially adjourning in late March 2020, despite a constitutional provision limiting regular sessions to “one hundred and twenty calendar days”—the Colorado General Assembly passed a number of important bills affecting employers. On July 15, 2020, Governor Jared Polis signed the Healthy Families and Workplaces Act (HFWA), which prescribes new paid sick leave obligations going into effect for covered employers with 16 or more employees on January 1, 2021, and for all other covered employers (regardless of how many people they employ) on January 1, 2022. The HFWA also mandates that all covered employers in Colorado provide paid sick leave for certain COVID-19-related reasons immediately and through the end of 2020. Read on for more details about the HFWA and other important legislative developments. Read more >>