June 8, 2023

Shifting Landscape: New Laws Significantly Impact Colorado Employers

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.

April 7, 2023

How to Support an Employee Going Through a Gender Transition

Laurie Rogers

by Laurie Rogers

As transgender employees become more comfortable living openly as their authentic selves in the workplace, employers should be prepared to work with transitioning employees. Consider putting a plan in place that fosters an inclusive work environment and guards against discrimination based on gender identity and expression. This plan should include communicating with transitioning employees, educating your workforce, and creating clear policies addressing the rights and needs of transgender and gender nonconforming employees.

Communication

You should create an accepting work environment that invites employees to speak openly with HR or management. Inviting open communication directly with company leadership allows you to address concerns before they escalate.

When a transitioning employee comes to you, work with them on their anticipated transition timeline, including whether and how they want their coworkers to learn about the transition. Encourage self-identification of pronouns and acknowledge and allow name and/or pronoun changes within your HR systems, regardless of whether the employee has legally changed their name. Assure the transitioning employee that they may dress in a manner that corresponds with their gender expression or identity, and they are permitted to use bathrooms and locker rooms that align with their gender identity. Read more >>

April 5, 2023

10th Circuit Rejects ERISA Arbitration Provision

Alex Smith

by Alex Smith

Courts have been mixed regarding the enforceability of arbitration provisions in Employee Retirement Income Security Act (ERISA) retirement plans since the U.S. 9th Circuit Court of Appeals’ 2019 decision in Dorman v. Charles Schwab Corp. Some employers and plan sponsors have considered adding arbitration provisions based on Dorman and the proliferation of ERISA class action lawsuits. Following the decision from the 10th Circuit (whose rulings apply to all Colorado employers) in Harrison v. Envision Management Holding, Inc. Board, however, employers in the 10th Circuit may want to reconsider.

10th Circuit’s decision

In Harrison, the 10th Circuit rejected the enforcement of an employee stock ownership plan’s (ESOP) arbitration provision in a lawsuit filed by a plan participant alleging the ESOP’s fiduciaries overpaid for the employer’s stock, breached numerous ERISA fiduciary duties, and engaged in prohibited transactions.

The 10th Circuit’s ruling focused on the ESOP’s specific arbitration provision, which allowed participants to obtain only individual relief and therefore made it impossible for them to obtain the plan-wide relief under ERISA. As a result, the 10th Circuit concluded the participants couldn’t effectively vindicate their statutory rights under ERISA. Read more >>

March 31, 2023

States That Still Require Paid Sick Leave for COVID-19

Laurie Rogers

by Laurie Rogers

Question: Do any states still require employers to provide paid COVID-19 sick leave in 2023?

Answer: Yes. As of March 15, 2023, states, counties, or cities that still require an employer to provide paid COVID-19 sick leave include:

Chicago and Cook County, Illinois (vaccine leave);
Colorado (public health emergency leave);
Los Angeles County, California (supplemental paid sick leave and paid vaccine leave);
Nevada (paid vaccine leave and paid leave for public accommodations facilities);
New York State (paid vaccine leave);
Oakland, California (supplemental paid sick leave); and
Philadelphia, Pennsylvania (supplemental paid sick leave).

February 23, 2023

NLRB Changes the Game for Confidentiality Provisions in Severance Agreements

By Greg Saylin, Steven Suflas, Tyson Horrocks, Brit Merrill, and Kody Condos

This week, the National Labor Relations Board (NLRB or “Board”) issued a decision that could significantly shape the terms of severance agreements with departing employees. Under this decision, all employers are prohibited from including provisions that prohibit disparagement of the employer or prevent the employee from discussing the terms of the agreement. However, the opinion is certain to be challenged in the federal appellate courts.

Often, non-unionized employers do not think the National Labor Relations Act (NLRA or “the Act”) applies to them. However, that is not true. Section 7 of the Act guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Read more >>

January 27, 2023

Are Employers On The Hook for Hiring Interpreters for Job Candidates?

David Law

by David Law

Question: Are we required to provide American Sign Language (ASL) or English-language interpreters for candidates in job interviews? If so, who pays?

Answer: Not necessarily, but you are required to reasonably accommodate candidates with disabilities, including candidates who are deaf. Reasonable accommodations can include sign language interpreters but can also include written materials produced in alternative formats, such as Braille, large print, or on audio- cassette. You should choose an accommodation that enables the candidate to participate fully in the interview process. Read more >>

January 17, 2023

The Latest on the Wyoming Legislature’s Employment Proposals

Janae Ruppert

By Janae Ruppert

The Wyoming Legislature began the 2023 General Session on January 10, 2023. At this early stage of the session, only two employment related bills have been introduced.

Prohibiting Mask, Vaccine and Testing Discrimination. House Bill 66, entitled “Prohibiting mask, vaccine and testing discrimination” seeks to prohibit discrimination based upon a person’s vaccination status, medical testing status, or use of a facial covering (i.e. mask). This bill is not limited to defining new categories of discrimination in the workplace but would prohibit imposing masking, testing or vaccination requirements as a condition for accessing publicly available goods and services. Notably, the bill is not limited to COVID-19, but extends to testing, masking or vaccination for any communicable disease. The bill would also repeal the immunization requirements for children and childcare and school employees. Read more >>

January 10, 2023

End of Year Federal Employment Law Update: 2022

Jordan Walsh

By Jordan Walsh

In 2022, there were some impactful, but relatively quiet developments in federal employment law. These developments affect confidentiality, non-disparagement, and arbitration agreements, and create protections for pregnant and nursing employees. Employers are encouraged to consult with legal counsel regarding these changes to ensure their compliance with these changes.

1. No Mandatory Arbitration of Sexual Assault or Sexual Harassment Claims:

On March 3, 2022, President Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, (2021-2022) (the “Act”), into law. The Act amends the Federal Arbitration Act by rendering all pre-dispute arbitration agreements and pre-dispute joint action waivers entered into on or after March 3, 2022 invalid and unenforceable in the context of sexual assault disputes[1] and sexual harassment disputes[2]. H.B. 4445 § 402(a). Instead, the Act leaves it up-to the claimant to elect to arbitrate such claims; the claimant may not be compelled to arbitrate sexual assault and/or sexual harassment claims. Id.

The Act applies to all claims of sexual assault and harassment, regardless of whether the matter is brought under state, federal, or local law. Additionally, the Act expressly provides that regardless of whether an arbitration agreement authorizes an arbitrator to make a determination of arbitrability concerning claims arising under the agreement, a court, not an arbitrator, has the authority to determine the enforceability of an agreement in the context of the Act. Id. at § 402(b). Read more >>

January 6, 2023

FTC Proposes A New Regulation That Kicks Non-Competes to the Curb

By Jeremy Merkelson and Jordan Walsh

Jordan Walsh

On January 5, 2023, the FTC issued a Notice of Proposed Rulemaking (“proposed Rule”) that would ban most non-competition agreements in the United States and put to the wastebin the 50-state patchwork of laws that currently govern the enforceability of such covenants across the country.

The proposed Rule bars post-employment non-competes with “workers” (defined to include not only employees but also independent contractors and others). This fact sheet published on the FTC’s website provides policy-related information about the FTC’s reasoning for the ban.

The proposed Rule sweeps within its ambit not only non-competition covenants that bar workers from new employment but also “de facto” agreements that the FTC considers to be unfair, including non-disclosure, non-solicitation and other covenants that have “the effect of prohibiting the worker from seeking or accepting employment with a person or operating a business after the conclusion of the worker’s employment with the employer.”

As drafted, the proposed Rule contains no exclusions for management, protection of trade secrets or other exemptions that state laws currently provide. The sale of business exception that typically allows sellers of a business to be subject to non-competition covenants in favor of the acquiror is preserved to some extent by the proposed Rule, but only if the seller holds a “substantial” interest in the company being sold, which is pegged at 25% or greater of the company’s equity—a high threshold that could effectively do away with many sale-of-business non-competes currently in place. If the proposed Rule is adopted, companies would be required to provide notice to both current and former employees to notify them that their non-competes are no longer in effect and may not be enforced against them. Read more >>

December 8, 2022

H-1B FAQs

Sarah Bileti

By Sarah Bileti

1. When is an employer required to file an H-1B amendment petition for a foreign worker?

A: An H-1B amendment petition is required when there is a material change in the terms and conditions of authorized employment. What constitutes a material change is not explicitly defined by statute, but the United States Administrative Appeals Office (AAO) held in its precedent decision, Matter of Simeio Solutions, LLC that a change in work location that would require the filing of a new Labor Condition Application (LCA) constitutes a material change requiring the filing of an amended H-1B petition. A new LCA is required for a change in work location that is outside the Metropolitan Statistical Area (MSA), or normal commuting distance, of the work location listed in the original petition. In addition to changes in work location, other material changes prompting an amended H-1B petition may include significant changes in job duties and reductions in salary or hours. Read more >>