The Rocky Mountain Employer

“Today, the U.S. Department of Labor (“DOL”) published proposed rules[1] that would set new guidelines for properly classifying whether certain workers are “employees” or “independent contractors” under the Fair Labor Standards Act (“FLSA” or the “Act”).”

“The Equal Employment Opportunity Commission (“EEOC”) recently filed suit against a nursing home which allegedly ignored racially-charged harassment levied by home residents against minority employees.”

“The Court of Appeals for the Eleventh Circuit recently discussed the importance of Section 1 of the Sherman Act when plaintiffs alleged that no-hire agreements between Burger King and its franchisee restaurants constituted “concerted action” for antitrust purposes.”

“Colorado’s Paid Family and Medical Leave Insurance Act, C.R.S. §§ 8-13.3-501 et seq., (“FAMLI”), requires employers to register with MyFAMIL+ prior to January 1, 2023 and begin paying premiums and submitting required reports to the FAMLI Program on January 1, 2023.”

“On September 6, 2022, the National Labor Relations Board (the “Board”) released a Notice of Proposed Rulemaking that would change the current standard defining a joint employer relationship for purposes of potential liability for unfair labor practices.”

“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.”

“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.”

“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.

“ 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.“

“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.”

“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.”

“The U.S. Department of Labor issued a rule proposal that requires incoming or successor contractors to hire qualified workers from the prior contractor.”

“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.”

On May 25, 2022, Governor Jared Polis signed Senate Bill 22-234 into law, which took effect immediately.

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.

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.