The Rocky Mountain Employer

On May 30, 2023, National Labor Relations Board (“NLRB”) General Counsel, Jennifer Abruzzo, sent a memorandum to all Regional Directors, Officers in Charge, and Resident Officers with guidance concerning non-compete provisions in employment contracts and severance agreements—specifically as to how such agreements may conflict with employee rights under Section 7 of the National Labor Relations Act (“NLRA” or the “Act”).

“Since 2021, the Healthy Families & Workplaces Act (“HFWA”) has required Colorado employers to provide supplemental, paid public health emergency leave (“PHE Leave”) to employees for certain leaves of absence relating to COVID-19.”

“For nearly 65 years, employers that suffer property damage from strike activity have found state claims preempted by the National Labor Relations Act.  On June 1, 2023, the U.S. Supreme Court issued a decision that may change the legal landscape, opening the door for employers to sue labor unions in state court for failing to reasonably protect against property damage during a strike.”

“The Equal Employment Opportunity Commission ("EEOC") recently released guidance regarding the potential negative effects of using artificial intelligence (“AI”) technology when making employment-related decisions, such as hiring or promotion decisions.”

“On December 29, 2022, the “Providing Urgent Maternal Protections for Nursing Mothers Act” (“PUMP Act”) was signed into law, requiring employers nationwide to provide certain break time and space accommodations for nursing employees to be able to pump breast milk on the job.“

“Heading into the second quarter of 2023, it is an opportune time to catch up on additional employment law changes that have passed through the General Assembly and are awaiting the signature of Governor Polis to become law.”

“On May 11, 2023, the federal declaration of a public health emergency for COVID-19 finally expires.“

“On Monday, May 1, 2023, the Colorado House of Representatives passed a third reading of Senate Bill 23-105 (SB-105), with no further amendments.“

“On March 31, 2023, HB 23-1006 was signed into law, adding an additional notice requirement between Colorado employers and their employees.”

“While FAMLI is clear that paid leave time and benefits under its program can run concurrently with unpaid, protected leave entitlements under the federal Family and Medical Leave Act (“FMLA”), FAMLI generally prohibits running employer-provided PTO concurrently with paid FAMLI leave, with the exception of leave and benefits under disability benefit policies or a special, separate bank of PTO time for FAMLI purposes.”

“On April 5, 2023, the Colorado Senate Judiciary Committee moved forward on a bill that could change the employment discrimination landscape dramatically.“

“During a recent stakeholder meeting, the Division of Family and Medical Leave Insurance (the “Division”) announced that it would be proposing new and revised regulations for Colorado’s family and medical leave program (“FAMLI”).”

“The General Counsel of the National Labor Relations Board (“NLRB”) has issued a memorandum clarifying the National Labor Relations Board’s (“NLRB” or the “Board”) McLaren Macomb decision—previously discussed in this blog.”

“On March 15, 2023, the Colorado Department of Labor and Employment (CDLE) Division of Labor Standards and Statistics (DLSS) filed proposed rules for public comment concerning collective bargaining rights of certain public-sector employees.”

“With the upcoming close of the first quarter of 2023, now is a good time to check on the status of some of the most significant labor and employment law changes introduced by the General Assembly this year.“

“Regulations governing Colorado’s new Paid Family and Medical Leave program (“FAMLI”) permit employers to utilize self-insured plans in lieu of participating in the state-run program if the employers meet several requirements and criteria, and obtain approval from the state.”

“On February 21, 2023, the National Labor Relations Board (“NLRB” or the “Board”), via its decision in McLaren Macomb, reversed recent precedent governing the validity of confidentiality and non-disparagement clauses in severance agreements…”

“On Thursday, February 9, 2023, the U.S. Department of Labor (DOL) issued guidance that provides employers with a look at how the agents who enforce the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA) will apply these laws to teleworking arrangements.”

“The United States Supreme Court will consider the continued validity of the current, prevailing application of the “undue hardship” standard with respect to religious accommodation requests under Title VII when it hears oral argument in Groff v. DeJoy, No. 22-174, on April 18, 2023.”

“The Federal Trade Commission (“FTC”) issued a Notice of Proposed Rulemaking on January 5, 2023, that would ban a majority of non-compete clauses in the employment context.”