The Rocky Mountain Employer

“President Donald Trump has issued a flurry of Executive Orders in his first few days in office that aim to eliminate “diversity, equity, and inclusion” (“DEI”) policies in the private and public sphere.  President Trump’s Executive Order titled, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (the “Order”), revokes decades-old Executive Order 11246, which, among other things, aimed to ensure that private sector employers working for the federal government under contract did not discriminate on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin.  However, despite the Order, private employers with DEI policies need not and should not eliminate these policies without a thorough audit of the same.”

“Multiple states are joining Colorado in implementing state-run paid family and medical leave programs, similar to Colorado’s Paid Family and Medical Leave Insurance program (“FAMLI Program”). The adoption of these programs raises questions regarding the interplay and coordination between the benefits and protections afforded by the federal Family and Medical Leave Act (“FMLA”), state-run paid family leave programs like the FAMLI Program, and employer-provided benefits such as short-term disability, paid sick leave, and other paid time off—particularly as to when and how employees may supplement either unpaid FMLA leave or state-run paid family leave with employer-provided benefits.  In a January 14, 2025 Opinion Letter, the U.S. Department of Labor has attempted to answer some of these questions.”

“On January 15, 2025, in E.M.D. Sales, Inc. v. Carrera,[1] Justice Kavanaugh issued the Supreme Court’s unanimous opinion rejecting arguments in favor of a heightened “clear and convincing evidence” standard for proving exceptions to overtime requirements under the Fair Labor Standards Act (“FLSA”) The question presented to the Court was whether this higher standard should apply to overtime exemption classification disputes instead of the default “preponderance of the evidence” standard. The Court concluded that even though the FLSA aims to protect workers and ensure fair wages, such public policy considerations had no bearing on the applicable standard of proof.”

“As reported in the Rocky Mountain Employer in October, 2024, in Ames v. Ohio Department of Youth Services, the U.S. Supreme Court is poised to review how reverse discrimination claims are assessed under Title VII of the Civil Rights Act and resolve an ongoing Circuit split on the issue. “Argument before the Court is scheduled for February 26, 2025, but, in the meantime, the U.S. Equal Employment Opportunity Commission (“EEOC”) and the U.S. Department of Justice (“DOJ”) have submitted an amicus brief in favor of Petitioner Marlean Ames to argue that the heightened “background circumstances” test for reverse discrimination cases, as applied by the Court of Appeals for the Sixth Circuit, should be abandoned.”

“On December 3, 2024, the U.S. Department of Labor (“DOL”) announced a proposed rule to phase out the issuance of Section 14(c) certificates under the Fair Labor Standards Act (“FLSA”). Since 1938, these certificates have allowed employers to pay workers with disabilities less than the federal minimum wage based on their productive capacity. The DOL’s proposed rule reflects its conclusion that these certificates are no longer necessary as a result of significant advancements in disability rights, workforce inclusion, and employment opportunities for individuals with disabilities.”

“Last Spring, the Rocky Mountain Employer discussed the U.S. Department of Labor’s (“DOL’s”) anticipated increases to the minimum salary thresholds for exemptions from the Fair Labor Standards Act’s (“FLSA’s”) overtime exemptions for executive, administrative, and professional employees—including the salary thresholds for “highly-compensated employees”—which went into effect on July 1, 2024, and which affected the exempt status of salaried and highly-compensated employees both in Colorado and nationwide (the “Final Rule”). However, on November 15, 2024, the U.S. District Court for the Eastern District of Texas, in Texas v. United States Department of Labor, vacated the DOL’s Final Rule, effectively resetting salary thresholds to their previous 2019 levels.”

“Colorado law occupies a unique middle-ground position in “right to work” labor laws, as it currently allows employees to unionize after obtaining a simple majority vote, but also requires a second election where a 75% plurality must be obtained before a recognized union can negotiate for “union securities.” However, Colorado labor movement is looking to change Colorado’s status from a modified right-to-work state to a state that permits conditioning employment on membership with a union once a union is elected as the employees’ bargaining agent.  Specifically, the Colorado labor movement is pushing for the passage of the Worker Protection Act (“WPA”), which would repeal key provisions of the over 80-year-old Colorado Labor Peace Act (“LPA”).”

“On November 13, 2024, the National Labor Relations Board issued a landmark decision in Amazon.com Services LLC, overturning decades-long precedent to hold that employers violate Section 8(a)(1) of the National Labor Relations Act when they require employees to attend captive-audience meetings (or else face discipline or discharge) in which the employer expresses its views on unionization.”

“On November 8, 2024, the National Labor Relations Board ruled in Siren Retail Corp. d/b/a Starbucks Corp. that the prior test governing the lawfulness of statements made by employers concerning the effects of unionization on the employer/employee relationship was wrongly decided, and defined a new test that considers whether the employer’s statements are factually supported and reasonably justified.”

“The Rocky Mountain Employer recently discussed the U.S. Department of Labor’s recent guidelines focused on preventing disability discrimination in the hiring process resulting from the use of artificial intelligence (“AI”) and has previously discussed Colorado’s own legislation intended to curb unintentional discrimination resulting from the use of AI in employment decisions.”

“On October 7, 2024, the Colorado District Court for the City and County of Denver denied Southwest Airlines’ motion to dismiss the Transport Worker Union of America, AFL-CIO, Local 556’s Complaint seeking a declaratory judgment that the settlement reached between Southwest and the Division of Labor Standards and Statistics is unenforceable.”

“On September 9, 2024, the Colorado Supreme Court in Hamilton v. Amazon.com Services LLC held that holiday incentive pay offered by an employer must be included in the calculation of the “regular rate of pay” when determining an employee’s overtime rate of pay.“

“The U.S. Supreme Court is set to review how reverse discrimination claims are assessed under Title VII of the Civil Rights Act and resolve an ongoing Circuit split on the issue.”

"On September 24, 2024, the U.S. Department of Labor (“DOL”) announced the publication of a set of guidelines intended to support the inclusive use of artificial intelligence technologies (“AI”) by employers utilizing the technology in the hiring process."

"Last week, the Equal Employment Opportunity Commission (EEOC) brought two suits alleging that each respective employer violated the Pregnant Workers Fairness Act (PWFA) by, among other things, denying reasonable accommodations under the PWFA, punishing employees for exercising their rights under the PWFA, and otherwise requiring employees to work against the advice and direction of the employee’s physicians."

"Enacted in 2008, the Mental Health Parity and Addiction Equity Act aims to put benefits offered by insurers and group health plans for the treatment of mental health and substance use disorders (“MH/SUD”) on an even playing field with benefits for other medical or surgical treatments by prohibiting plans and insurers from placing undue restrictions or limitations on MH/SUD benefits (both qualitative and quantitative), as compared to other medical or surgical benefits being offered."

"On July 25, 2024, the Court of Appeals for the Ninth Circuit in Okonowsky v. Garland held that social media posts made by a coworker outside of work may be considered part of the overall totality of circumstances in evaluating an employee’s Title VII claim for a hostile work environment based on sex."

"n 2017, the U.S. Supreme Court held in Bristol-Myers Squibb Co. v. Superior Court of California that California state courts did not have personal jurisdiction over hundreds of mass tort action plaintiffs’ claims when general jurisdiction over the defendant was lacking, the plaintiffs were non-residents of the forum state (California), and the non-resident plaintiffs did not suffer any of their alleged injuries in California."