The Rocky Mountain Employer

“Workplace sexual harassment and abuse are not uncommon phenomena, but the United States Congress and President Trump recently passed a bill called the “Take it Down Act” which criminalizes, on a federal level, the nonconsensual publication of intimate or sexually graphic images of another person—whether legitimate or artificially generated (i.e. via artificial intelligence)—and creates avenues of redress for those persons affected by such conduct.  It also sets forth compliance requirements for any web-based platform to address complaints of AI-generated “deepfakes,” and declares a platform’s failure to comply to be an unfair or deceptive trade practice.“

“On July 7, 2025, the Wage and Hour Division of the Department of Labor (DOL) announced its withdrawal of its proposed rule published on December 4, 2024, which purposed to phase out the issuance of subminimum wage certificates to workers with disabilities under section 14(c) of the Fair Labor Standards Act (FLSA). With this withdrawal, the DOL formally discontinues the proposed rule and removes it from further consideration.”

“On June 27, 2025, the Department of Labor (“DOL”) issued Field Assistance Bulletin 2025-3 (“FAB 2025-3”) effectively rescinding the DOL’s prior practice of assessing (or threatening to assess) liquidated damages at the administrative investigation phase of wage and hour complaints under the Fair Labor Standards Act (“FLSA”).   In other words, per FAB 2025-3, the DOL will only seek awards of liquidated damages for wage and hour violations once they are actually litigated, and either an award or a settlement is reached.”

“On June 20, 2025, the Supreme Court of the United States (the “Court”) decided Stanley v. City of Sanford, affirming the dismissal of a complaint alleging a retiree’s claim of disparate treatment on the basis of her disability in violation of the Americans with Disabilities Act (“ADA”). The Court held that the retiree’s claim must be dismissed because she was not a “qualified individual” under Title I of the ADA (“Title I”), as she did not plead that she could perform the essential functions of the employment position that she held or desired. In so doing, the Court substantially limited retirees’ ability to enforce the protections articulated in Title I.”

“Campbell Litigation - Best wishes on this Juneteenth holiday”

“On June 5, 2025, the United States Supreme Court (the “Court”) vacated and remanded the Court of Appeals for the Sixth Circuit’s (the “Court of Appeals”) decision in Ames v. Ohio Department of Youth Services (“Ames”), in which the Court of Appeals applied the heightened “background circumstances test” for reverse discrimination claims under Title VII of the Civil Rights Act of 1964 (“Title VII”) to grant summary judgment in favor of the employer.  In so doing, the Court effectively abolished a significant evidentiary roadblock faced by members of “majority” groups who claim discrimination based on their protected class(es), which will dramatically affect discrimination jurisprudence in multiple federal circuits—including the Tenth Circuit.”

“The U.S. Department of Labor (“DOL”) recently released its Proposed Budget for the 2026 fiscal year,[1] following President Trump’s issuance of Executive Order 14173 in January of this year.  In light of the Proposed Budget, many fear that the DOL is now aligning with the current administration’s broader efforts to shut down the Office of Federal Contract Compliance Programs (OFCCP), thereby completely removing any authority the OFCCP has to audit and investigate federal contractors for potential discrimination based on race, sex, and other protected classes.“

“The Rocky Mountain Employer has been tracking how the Trump Administration has taken aim at “diversity, equity, and inclusion” (“DEI”) policies and initiatives since President Trump issued several Executive Orders targeting the same in the first few days of his term. Outside of the obligations communicated in such Executive Orders, it was not exactly clear how the Trump Administration intended to achieve its anti-DEI objectives.  However, on May 19, 2025, United States Deputy Attorney General Todd Blanche indicated in a memorandum that the Department of Justice (“DOJ”) would utilize the False Claims Act (“FCA”) as a part of its “Civil Rights Fraud Initiative” (“Initiative”) to combat illegal DEI initiatives utilized by federal contractors and recipients of federal funds.”

“Last December, the Rocky Mountain Employer discussed the Colorado labor movement’s push to eliminate the Colorado Labor Peace Act’s (“LPA” or the “Act”) current requirement for a second election to determine whether a union can negotiate for union security agreements.[1]  As a result of those efforts, the Colorado Senate introduced and eventually passed Senate Bill 25-005 (“SB25-005”) through the General Assembly after contentious negotiations between labor and employer advocacy groups.[2]  But, on May 16, 2025, Governor Polis vetoed the bill,[3] setting back (for now) the labor movement’s push to eliminate Colorado’s unique status as a “modified” right-to-work state.”

“The Rocky Mountain Employer has been tracking the status of House Bill 25-1001 (“HB-25-1001”) since it was first introduced in the Colorado General Assembly. As of May 6, 2025, HB25-1001 has passed through the General Assembly (with notable changes from its original version, discussed below) and, if signed into law by Governor Polis, will create even more exposure for employers for wage and hour violations under Colorado law by expanding the definition of “employer;” by expanding employer accountability; by requiring a court to find that an employee pursued a wage claim that lacked substantial justification before awarding an employer reasonable costs and attorneys’ fees; and by expanding avenues of recovery against employer retaliation and discrimination, among myriad other things.”

“The Rocky Mountain Employer has been tracking Senate Bill 25-144 (“SB25-144”) since it was first introduced in the Colorado General Assembly during the current legislative session. As previously discussed, SB25-144, if signed into law, will affect both employee and employer rights and responsibilities under Colorado’s Paid Family and Medical Leave Insurance Act and program (“FAMLI”).  On May 2, 2025, the Colorado General Assembly passed SB25-144 and sent the bill to Governor Polis for his signature.  Assuming Governor Polis does not veto the bill, qualifying employees will be entitled to additional leave benefits if their child is receiving inpatient care in a neonatal intensive care unit (“NICU”), starting in 2026.  Further, if signed into law, SB25-144 will set the parameters for the establishment of premium amounts for the FAMLI program for the next several years. “

“The first few months of President Trump’s second presidential term have been characterized by an unprecedented number of Executive Orders—many of which have been directed towards curbing or prohibiting both public and private diversity, equity, and inclusion (“DEI”) initiatives in the workplace. On April 23, 2025, the President issued Executive Order 14281—entitled “Restoring Equality of Opportunity and Meritocracy”—which goes even further and seeks to curtail or eliminate the use or application of disparate impact liability among federal agencies charged with investigating or preventing prohibited discrimination, including the Equal Employment Opportunity Commission (“EEOC”). “

“As part of the Colorado General Assembly’s 2025 Regular Session, the Colorado Senate introduced a bill—Senate Bill 25-083 (“SB25-083”)—that would effectively ban nearly all non-compete agreements for medical professionals. SB25-083 was passed by the full General Assembly as of April 21, 2025, and if Governor Polis signs the bill into law, the use of most restrictive covenants in employment agreements with physicians, physician assistants, certified midwives, dentists, and advanced practice registered nurses entered into after the bill’s August 6, 2025, effective date will be prohibited.”

“The Rocky Mountain Employer has closely followed President Trump’s ousting of National Labor Relations Board (“NLRB” or the “Board”) member Gwynne Wilcox and the ensuing developments in her lawsuit against the President.  Last week, the Rocky Mountain Employer reported that Member Wilcox successfully petitioned the full panel of D.C. Circuit judges (the “Panel”) to reverse, en banc, the U.S. Court of Appeals for the District of Columbia Circuit’s (the “Court of Appeals”) stay of U.S. District Court Judge Beryl Howell’s order reinstating Member Wilcox to her Board seat. However, Member Wilcox’s victory was once again short-lived, as Chief Justice Roberts of the Supreme Court of the United States (“SCOTUS”) reversed the Panel’s decision on April 9, 2025, and ruled that Member Wilcox’s termination is to stay in place pending a further order from himself or SCOTUS.” 

“The Rocky Mountain Employer has closely followed President Trump’s ousting of National Labor Relations Board (“NLRB” or the “Board”) member Gwynne Wilcox and the ensuing developments in her lawsuit against the President.  Just last week, the Rocky Mountain Employer reported that the Court of Appeals for the District of Columbia Circuit granted a stay of District Judge Beryl Howell’s order to reinstate Member Wilcox, and Circuit Judge Walker opined that he believed the President was likely to prevail on the merits based on the scope of his authority under the Constitution. The tide has turned yet again, however, as the full panel of D.C. Circuit judges (the “Panel”) have reversed, en banc, the original stay granted by the D.C. Circuit, thereby reinstating Judge Howell’s original order to reinstate Member Wilcox to the NLRB.”  

“The Rocky Mountain Employer previously discussed the District Court for the District of Columbia’s decision in Wilcox v. Trump, in which Judge Beryl Howell ruled that President Trump’s termination of National Labor Relations Board (NLRB) member Gwynne Wilcox was illegal, and ordered that Ms. Wilcox be reinstated. However, on March 28, 2025, the U.S. Court of Appeals for the District of Columbia Circuit granted a stay of Judge Howell’s order, while opining that President Donald Trump will likely succeed on his claim that he has the constitutional authority to remove appointees to federal agency boards, like Member Wilcox. “

“This week, Chief Judge Brimmer of the United States District Court for the District of Colorado (“USDC”) analyzed in Commissiong v. The Center at Lincoln, LLC (the “TCL Suit”) the question of which statutory provision governs the statute of limitations for civil theft claims under Colorado law.  The Court ultimately held that Colo. Rev. Stat. § 13-80-101(1)(h) controls, thereby imposing a three-year statute of limitations for civil theft claims, which at least helps to resolve a long-unsettled question as to whether civil theft claims are governed by a three-year limitations period under Section 13-80-101 or a two-year limitations period for tort actions, generally.”

“Upon his return to office, President Trump issued two notable Executive Orders (“EOs”)—EO 14151 and EO 14173—specifically targeted at diversity, equity, and inclusion (DEI) programs within the federal government and beyond.  On February 21, 2025, Judge Adam Abelson of the U.S. District Court for the District of Maryland issued a nationwide injunction against certain portions of the EOs, finding that the plaintiffs had shown a likelihood of success on the merits that the EOs violated the First and Fifth Amendments to the U.S. Constitution. Now, the Court of Appeals for the Fourth Circuit has unanimously reversed the lower court’s denial of the President’s requested stay of the injunction pending the merits of an appeal, with certain panel judges taking the opportunity to opine on DEI programs at large. “

“In an emphatic decision, Judge Beryl Howell of the U.S. District Court for the District of Columbia ordered President Trump to reinstate National Labor Relations Board (“NLRB” or the “Board”) Member Gwynne A. Wilcox to her Board seat. The President fired Wilcox, asserting unitary power over employees in the executive branch. Rejecting this broad construction of executive authority, Judge Howell concluded that Congress meant for some federal employees to be beyond the President’s reach except in limited circumstances.”

“Last week, the United States Supreme Court (“SCOTUS”) heard oral argument on Ames v. Ohio Department of Youth Services (“Ames”), a case based on a claim of reverse discrimination and previously discussed in the Rocky Mountain Employer.  The Justices’ comments during the oral argument indicate a strong likelihood that SCOTUS will reject the “background circumstances” test utilized in multiple federal Circuits (including the Tenth Circuit) in reverse discrimination cases, thereby lowering the prima facie burden required to state reverse discrimination claims under Title VII of the Civil Rights Act.”