The Rocky Mountain Employer

“On April 1, 2024, the Occupational Safety and Health Administration (“OSHA”) published its final rule regarding who may be designated to represent employees during physical worksite inspections conducted by OSHA Compliance Safety and Health Officers (“CSHOs”), colloquially referred to as the “Walkaround Rule”.“

“After a two-day trial on the merits of Robert Varkonyi’s claim that his employer failed to accommodate his request for a religious exemption from the company’s COVID-19 vaccination requirement, a jury returned a verdict finding that undue hardship would result to the employer if the request were granted.“

“In the wake of a contentious unionization effort, Denver Art Museum (the “Museum”) workers successfully unionized on March 7th, 2024.”

“On March 13, 2024, Colorado’s high court heard argument from the parties in Hamilton v. Amazon.com Services LLC, a federal proposed class action against the retail giant challenging the company’s calculation of overtime pay when employees work shifts already paid at a premium “holiday incentive pay” rate.”

“Colorado may join a small number of other states (Connecticut, Maine, New York, Minnesota, and Oregon) which have passed legislation banning mandatory “captive audience” meetings in the workplace.  House Bill 24-1260, introduced on February 12, 2024, and set to be heard by the Business Affairs & Labor Committee on March 20, 2024, would prohibit employers from requiring employees to attend meetings, listen to speech, or view communications concerning “religious or political matters”—including speech related to labor organizations and unionization—and would create a private right of action for violations of the same.”

“Beginning July 1, 2024, Colorado’s new Job Application Fairness Act (“JAFA” or the “Act”) will go into effect, which will restrict the ability of Colorado employers to inquire into the age of job applicants, or else risk civil penalties.”

“On February 8, 2024, the United States Supreme Court resolved a split among the lower Courts of Appeals regarding a plaintiff’s burden of proof in whistleblower retaliation cases where the plaintiff has been punished for reporting criminal fraud or securities violations under the Sarbanes-Oxley Act.”

“The Court of Appeals for the Tenth Circuit revived a medical professional's state age discrimination claim where the facts he alleged sufficiently implied he was terminated because of his age—notwithstanding that the plaintiff also alleged that his disability was the driving factor behind his termination.“

“n light of recent District Court and appellate decisions which have significantly reduced jury damages awards in federal discrimination cases based on existing caps on recoverable compensatory and punitive damages, these damages caps are now under scrutiny from both the Equal Employment Opportunity Commission (“EEOC”)’s General Counsel—Karla Gilbride—as well as, potentially, Congress itself.“

“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.”