Labor & Employment Law Updates
“The Court of Appeals for the District of Columbia recently reaffirmed that an employer may be liable for disciplining an employee for engaging in protected activity under the National Labor Relations Act—even when the protected conduct is clearly in poor taste and otherwise violates the employer’s rules against harassment and discrimination.”
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“The Court of Appeals for the Fifth Circuit recently emphasized the importance of evidence showing the actual “misuse” of another’s trade secrets in disputes over the same.”
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“The Ninth Circuit Court of Appeals is poised to rehear Chamber of Commerce of the United States v. Bonta, a case addressing whether California Assembly Bill 51 is preempted by the Federal Arbitration Act (“FAA”).”
Once an agency relationship is established, the business must contend with the ramifications of the agent’s conduct – good or bad.
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“ Colorado House Bill 22-1317 (“HB 22-1317) is now effective as of August 10, 2022, and imposes some of the most restrictive measures against non-competition covenants between employers and employees in the country.“
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“On January 1, 2023, Colorado employers could face penalties of up to twice the amount of wages owed in wage claims brought by employees, which is significantly different than the current penalty scheme for wage claim violations.”
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“On July 12, 2022, the Equal Employment Opportunity Commission (“EEOC”) issued new guidance allowing employers to administer mandatory worksite COVID-19 viral testing to determine whether it is safe for employees to be present in the workplace.”
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“The U.S. Department of Labor issued a rule proposal that requires incoming or successor contractors to hire qualified workers from the prior contractor.”
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“On November 3, 2020, Colorado voters approved Proposition 118 which mandates paid family and medical leave (“PFML”) for all Colorado employees similar to eight (8) other states and the District of Columbia.”
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“On June 24, 2022, the Supreme Court of the United States issued its opinion in Dobbs v. Jackson Women’s Health Organization, overturning Roe v. Wade and eliminating constitutional protection of the right to abortion.”
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On May 25, 2022, Governor Jared Polis signed Senate Bill 22-234 into law, which took effect immediately.
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“Amazon is the latest company to face a class action lawsuit from employees seeking reimbursement from costs borne out of remote work.”
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On May 12, 2022, the Equal Employment Opportunity Commission (“EEOC”) issued a new comprehensive “technical assistance" guidance, The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees.
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Although Colorado has not favored non-compete agreements, the law allows enforcement of non-compete agreements in very limited situations including, among others, to protect trade secrets or information given to certain high-level executive employees and their staff.
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As the federal government’s COVID-19 guidance continues to change so do the public health orders issued by state governments. As COVID-19 numbers trend downward in many states, restrictions are being lifted throughout the nation by those states’ Public Health Departments.
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The Colorado House of Representatives voted to approve House Bill 1367 on Thursday, April 28, 2022, which, if passed by the Senate, would expand the Colorado Anti-Discrimination Act (“CADA”) to cover domestic workers—those who work for private households such as cleaners, gardeners, nannies, and elderly care takers.[1] As currently enacted, CADA’s definition of “employee” excludes domestic workers.
[1] http://leg.colorado.gov/sites/default/files/documents/2022A/bills/2022a_1367_ren.pdf
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The pandemic created several new challenges for Colorado businesses. Labor shortages and a volatile workforce remain some of the biggest challenges. During the height of the pandemic, businesses laid workers off or close their doors in response to lockdowns and other COVID-19 measures, which led to an alarming increase in unemployment claims. On May 1, 2021, approximately 190,000 Coloradans were filing for continuous unemployment benefit coverage, and the state had already distributed over $9 billion in unemployment benefits since the beginning of the pandemic.[1] The surge in unemployment claims depleted Colorado’s unemployment insurance trust fund (UITF), leading to the need for Colorado to obtain a billion-dollar loan from the federal government to keep the UITF afloat. The deficit subjected Colorado employers to higher unemployment insurance premiums.
[1] Press Release: Update for the Week Ending May 1st: Continued Decline in Initial Claims and Work Search Updates | Department of Labor & Employment (colorado.gov).
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On Monday, April 18, 2022, a federal judge from the U.S. District Court for the Middle District of Florida struck down the Centers for Disease Control’s (“CDC”) national mask mandate on airplanes and public transit.[1] The judge’s ruling freed airlines, airports, and mass transit systems to make their own decisions about mask requirements, resulting in a mix of responses. The filing came days after airline CEOs called on President Biden to drop the mandate.[2]
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Colorado lawmakers abandoned yet another attempt to pass Protecting Opportunities and Workers’ Rights Act (“POWR”), which would have removed the longstanding “severe or pervasive” standard from Colorado sexual harassment claims for a much easier standard to prove.
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