The Rocky Mountain Employer

“In a recent federal lawsuit challenging Colorado’s Healthy Families and Workplaces Act (“HFWA” or the “Act”), plaintiff Airlines for America alleges that the Act unconstitutionally violates the dormant Commerce Clause because it creates conflicting regulations and unduly burdens interstate commerce.“

“On Wednesday, January 31, 2024, a three-judge panel of the Eleventh Circuit U.S. Court of Appeals heard oral argument in American Alliance for Equal Rights v. Fearless Fund Management, LLC et al., in which the Court had issued a temporary injunction against a Black women-owned venture capitalist firm’s grant program, which seeks to provide financial and other assistance exclusively to Black women entrepreneurs.”

“The Colorado General Assembly reconvened on January 10, 2024, and representatives quickly introduced new labor and employment legislation which focuses on the physical and mental health of Colorado employees in the workplace—particularly in health-care and behavioral health settings—in the form of the “Violence Prevention in Health-care Settings Act” and the “Violence Prevention in Behavioral Health Settings Act” (HB24-1066), as well as the “Concerning Suicide Prevention Education in the Workplace” bill (HB24-1015).”

“On January 17, 2024, the U.S. Supreme Court heard oral arguments in two cases which present the question of whether the Court should overrule, or at least clarify, its 1984 decision in Chevron, U.S.A., Inc. v. National Resources Defense Council, Inc.”

“On January 10, 2024, the U.S. Department of Labor published its final rule setting new guidelines for classifying workers as either “employees” or “independent contractors” under the Fair Labor Standards Act.”

“On December 19, 2023, the Court of Appeals for the Tenth Circuit affirmed summary judgment in Davis v. PHK Staffing against an employee terminated for exceeding the limits of a no-fault attendance policy.”

“On December 5, 2023, the Court of Appeals for the Tenth Circuit found that an employee benefit plan administrator failed to satisfy the relatively lenient arbitrary and capricious standard of review when it denied residential treatment benefits for mental health and substance use disorders under the Employee Retirement Income Security Act of 1974 (“ERISA”).”

“The Colorado Department of Labor and Employment (“CDLE”) has updated and finalized its rules concerning pay standards and compensation, equal pay transparency, and prevailing wage and residency requirements, effective January 1, 2024.”

“The Rocky Mountain Employer previously discussed the Equal Employment Opportunity Commission’s (“EEOC”) Proposed Rule to implement the Pregnant Workers Fairness Act (the “Act”) which was signed into law on December 29, 2022, and became effective on June 27, 2023.”

“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.”