The Rocky Mountain Employer

“The Court of Appeals for the Tenth Circuit recently issued a decision which demonstrates the limits to which courts will defer to employers’ judgment when they rely on company policies to determine which elements of a particular job are, or are not, essential for disability accommodation purposes.”

“As previously discussed in The Rocky Mountain Employer, the General Counsel for the National Labor Relations Board, Jennifer Abruzzo, has taken the position that most non-compete provisions in employment contracts and separation agreements are unlawful under the National Labor Relations Act.”

“On September 29, 2023, the Equal Employment Opportunity Commission released its revised “Proposed Enforcement Guidance on Harassment in the Workplace”, which was published in the Federal Register on October 2, 2023.“

“On October 26, 2023, the National Labor Relations Board (the “Board”) announced and published its “final” rules regarding the standard for determining joint employer status under the National Labor Relations Act (“NLRA” or the “Act”)—abandoning its prior published rules from April, 2020 which were significantly more employer-friendly.”

“On September 21, 2023, the Equal Employment Opportunity Commission (the “EEOC”) filed a complaint against A&A Appliance, Inc. (“A&A Appliance”), alleging that it violated the Americans with Disabilities Act (the “ADA”) when it declined to grant an employee’s request for additional leave from work after her FMLA leave expired in order to further address symptoms and ailments resulting from long COVID.“

“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.”