The Rocky Mountain Employer

“The Colorado Department of Labor and Employment (“the CDLE”) issued proposed rules on September 29, 2023, clarifying employer obligations under the Equal Pay for Equal Work Act (“the Act” or “EPEWA”) by defining career development and progression, expanding on exceptions to job postings and deadline requirements, and obligating employers to provide “post-selection” notices to employees.”

“Following the United States Supreme Court’s recent decision in Students for Fair Admissions, Inc. v. Harvard College (“SFFA”), Colorado Attorney General Phil Weiser issued a formal opinion on October 4, 2023, in response to questions and concerns regarding the legitimacy of diversity, equity, and inclusion (DEI) programs in the employment context.”

“Generally speaking, when an agency like the Equal Employment Opportunity Commission (“EEOC”) investigates a charge, its investigation may expand beyond the allegations in the charge to include other potential violations of federal anti-discrimination laws, but its investigation is nonetheless bound by its own jurisdictional limitations.“

“The Equal Employment Opportunity Commission released its Strategic Enforcement Plan detailing issues the EEOC will prioritize for enforcement purposes in the coming years.”

“The National Labor Relations Board (“NLRB” or the “Board”) issued a decision on August 25, 2023, which broadens the circumstances in which the NLRB may find that an individual employee engaged in concerted activity under the National Labor Relations Act (“NLRA” or “the Act”).“

“In David P. v. United Healthcare Ins. Co., a Tenth Circuit panel endorsed a remedy that may seem unusual to laypersons and practitioners alike: having concluded that an Employee Retirement Income Security Act (ERISA) plan administrator abused its discretion in the handling of a healthcare plan beneficiary’s claim, the appellate court found that, without a clear showing that the claim should have been in fact granted, the matter should be sent back to the defendant plan administrator to correct its own mistake.”

“On August 30, 2023, the U.S. Department of Labor (“DOL”) announced a notice of proposed rulemaking[1] which, if adopted by the DOL as written, will significantly increase the minimum salary threshold necessary to exempt executive, administrative, and professional employees from the Fair Labor Standards Act’s (“FLSA’s or the “Act’s”) minimum wage and overtime requirements.“

“On December 26, 2023, the National Labor Relations Board's (“NLRB”) Final Rule on Representation Case Procedures (“Final Rule”) will take effect and restore changes to the union election process implemented during the Obama administration which significantly sped up the representation election process, and which were rolled back by the NLRB during the Trump administration.”

“On August 18, 2023, with its ruling in Hamilton v. Dallas County,[1] the Court of Appeals for the Fifth Circuit departed from its decades-long precedent and held that discrimination claims under Title VII are cognizable for adverse employment actions beyond “ultimate employment decisions,” such as hiring, termination, promotion, compensation decisions, etc.“

“Recent articles in The Rocky Mountain Employer highlight features of the Protecting Opportunities and Workers’ Rights (POWR) Act (SB 23-172), signed into law on June 6, 2023, particularly with respect to changes to the definition of unlawful “harassment” and an employer’s ability to defend against claims of harassment and discrimination.”

“On August 7, 2023, the EEOC issued a Notice of Proposed Rulemaking with proposed regulations for the implementation and enforcement of the Pregnant Workers Fairness Act (“PFWA” or the “Act”).”

“On July 25, 2023, the federal Departments of the Treasury, Labor, and Health and Human Services (the “Departments”) jointly issued over 300 pages of proposed regulations and guidance regarding the Mental Health Parity and Addiction Equity Act (the “Parity Act”) and its requirements…”

“On July 25, 2023, the Department of Homeland Security (DHS) released a final rule that allows qualified employers to continue verifying employees’ I-9 employment authorization documents remotely, subject to certain eligibility requirements and procedural steps that must be followed for remote verification.”

“In March 2020, the Department of Homeland Security (DHS) announced flexibilities (“Flexibilities”) related to Form I-9 compliance.”

“On July 6, 2023, a federal Administrative Law Judge (ALJ) in Ithaca, New York handed down a decision that, in part, ordered Starbucks to post a notice of workers’ rights at each of its facilities nationwide.”

“Last week, the U.S. Supreme Court issued its much-awaited decision in Groff v. DeJoy. In a unanimous decision, the Court revised and tightened the standard for determining whether an employer may be excused from accommodating an employee’s religious belief that conflicts with a workplace requirement based on "undue hardship" under Title VII of the Civil Rights Act of 1964 ("Title VII").”

“In recent months, The Rocky Mountain Employer has covered multiple pending bills before the General Assembly which had the potential to further change and expand employer obligations in Colorado.”

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.”