The Colorado General Assembly was busy drafting and passing numerous employment laws during its 2022 legislative session, creating a wave of change for employers in the Centennial State.
The Colorado Department of Labor and Employment (CDLE) has been busy this summer with the release of several Interpretive Notice & Formal Opinions (INFOs), providing guidance on the evolving landscape of Colorado employment law.
The U.S. Department of Health and Human Services (HHS) recently extended its determination that a public health emergency exists due to the COVID-19 pandemic. On April 12, 2022, U.S. Secretary of Health and Human Services Xavier Becerra announced the renewal of the public health emergency determination.
Colorado has enacted the most significant change to its legal landscape concerning restrictive covenants in the employment context in the state’s history.
Nearly two years after declaring a public health emergency exists due to the COVID-19 pandemic, the U.S. Department of Health and Human Services (“HHS”) has extended that determination yet again. On January 14, 2022, U.S. Secretary of Health and Human Services Xavier Becerra announced the eighth consecutive renewal of the nationwide COVID-19 public health emergency.
Colorado has enlisted the help of the criminal justice system to reinforce its strong public policy against restrictive covenants. Beginning on March 1, 2022, violations of Colorado’s restrictive covenants statute, C.R.S. § 8-2-113, may subject employers to criminal liability.
On November 10, 2021, after a public hearing and comment submission period, the Colorado Department of Labor and Employment (CDLE) published three final rules: (1) the Colorado Overtime and Minimum Pay Standards Order #38 (COMPS 38), (2) the 2022 Publication and Yearly Calculation of Adjusted Labor Compensation Order (2022 PAY CALC Order), and (3) the updated Wage Protection Rules. All these rules go into effect on January 1, 2022, and have significant implications for employers doing business in the state.
The pandemic may be waning, but the requirement for Colorado employers to provide supplemental public health emergency leave to employees under certain COVID-19–related circumstances continues. On October 15, 2021, U.S. Secretary of Health and Human Services Xavier Becerra announced another extension of the nationwide COVID-19 public health emergency, effective October 18, 2021.
On September 15, 2021, the Tenth Circuit Court of Appeals upheld a district court’s grant of summary judgment in favor of an employer. In Brown v. Austin, the Tenth Circuit found that an employee’s telework, weekend work, and supervisor change request were unreasonable under the federal Rehabilitation Act and that the employee had failed to allege a prima facie case of disability discrimination, retaliation, or constructive discharge.
The issue of the proper application of the highly compensated employee exemption under the Fair Labor Standards Act (FLSA), as it applies to employees paid on a “day-rate” basis in the oil and gas industry, has been a hotly debated issue in recent years, especially in the Fifth Circuit Court of Appeals.
In November 2020, the Colorado Department of Labor and Employment (CDLE) adopted Colorado Overtime and Minimum Pay Standards Order (COMPS) #37, which went into effect on January 1, 2021. COMPS #37, like its predecessor orders, outlined the requirements for employees to qualify for exemption from Colorado’s overtime and minimum wage requirements. Among other things, COMPS #37 clarified a point that employers had long struggled with: Colorado’s requirement that an employee “directly serve” an “executive” to qualify for the administrative exemption.
Employers covered by the Colorado Equal Pay for Equal Work Act, Part 2 (EPEWA) will now have to post wage and benefit information for all covered promotional opportunities and job openings (including remote jobs that can be performed anywhere), unless that work is specifically tied to a non-Colorado worksite. In a reversal of its prior interpretation, the Colorado Department of Labor and Employment (CDLE) issued a revised Interpretative Notice & Formal Opinion (INFO) #9 on July 21, 2021—six months after the law went into effect on January 1, 2021. The revised INFO #9 contains several critical changes with regard to the CDLE’s interpretation of the EPEWA that will affect virtually all employers with at least one employee in Colorado.
Colorado’s Equal Pay for Equal Work Act went into effect on January 1, 2021. The act creates significant compliance burdens for employers with even one employee in Colorado. In fact, the act is the only law in the United States to require employers to (1) post compensation and benefits information with each job posting for Colorado jobs and (2) internally post promotional opportunities to current Colorado employees on the same day and sufficiently in advance of promotion decisions.
On June 14, 2021, the Colorado Supreme Court provided an answer to the long-standing question of whether “use-it-or-lose-it” vacation policies are permissible under the Colorado Wage Claim Act (CWCA). In the case of Nieto v. Clark’s Market, No. 19SC553, the Colorado Supreme Court held that an employer may not require an employee to forfeit vacation pay upon the termination of the employment relationship, and any agreement purporting to do so is void.
Several states’ minimum wage rates will increase in 2021. The following chart lists the state (and certain major locality) minimum wage increases for 2021—and future years, if available—along with the related changes in the maximum tip credit and minimum cash wage for tipped employees.
Back in January, management-side labor and employment lawyers in Colorado thought the biggest wage and hour compliance issue for 2020 would be limited to ensuring clients were up to date on the expanded meal and rest break requirements of the Colorado Overtime and Minimum Pay Standards Order #36 (COMPS #36). What has transpired in the months since then has been truly dizzying: a barrage of legal and regulatory developments ranging from drastically overhauled COMPS exemptions to an entirely new paid sick leave requirement. Considering the pace at which these changes have progressed, it is possible that by the time this article is published, new rulemaking or guidance will have taken us in a different direction, but the following are some of the most important wage compliance issues to consider for Colorado employers as the new year looms.
On November 3, 2020, Colorado voters passed Proposition 118, a ballot initiative establishing a paid family and medical leave program. The new law, known as the “Paid Family and Medical Leave Insurance Act,” provides for 12 weeks of paid family and medical leave funded through a payroll tax paid by employers and employees in a 50/50 split.
Elections in the United States are scheduled for Tuesday, November 3, 2020. Not only will the office of president of the United States be contested, but all 435 seats in the U.S. House of Representatives and 35 of the 100 seats in the U.S. Senate are up for grabs. At the state level, elections will be held for the governorships of 11 U.S. states and 2 U.S. territories.
Colorado Governor Jared Polis is expected to sign the Healthy Families and Workplaces Act (HFWA), Senate Bill 20-205, which will immediately make all Colorado employers, excluding the federal government, subject to the provisions of the federal Emergency Paid Sick Leave Act (EPSLA) in the Families First Coronavirus Response Act (FFCRA).
The Colorado General Assembly recently passed legislation intended to protect employees and certain independent contractors from discrimination and/or retaliation if they raise health and safety concerns related to a public health emergency. House Bill (HB) 20-1415, which Governor Jared Polis is expected to sign, appears to be in direct response to the COVID-19 pandemic, although it will ultimately apply to health and safety concerns unrelated to COVID-19.
On March 5, 2020, Colorado reported its first cases of coronavirus, which would multiply exponentially over the following weeks. Since then, the state and various municipalities, including Denver, have actively responded to the COVID-19 pandemic by issuing a series of orders affecting businesses and their requirements with respect to their employees.
In 2020, as part of its annual wage order rulemaking, the Colorado Department of Labor and Employment’s Division of Labor Standards and Statistics adopted Colorado Overtime and Minimum Pay Standards (COMPS) Order #36, a measure that will bring sweeping change to the state’s rules governing overtime, minimum wage, and working conditions standards.
In December 2019, the Colorado Department of Labor and Employment, Division of Labor Standards and Statistics, issued a final rule clarifying the statutory prohibition on “use it or lose it” vacation time payouts.
In 2020, a number of states’ minimum wage rates will increase. The following chart lists the states’ (and certain major localities’) minimum wage increases for 2020—and future years if available—along with the related changes in the maximum tip credit and minimum cash wage for tipped employees. The federal minimum wage will remain at $7.25 per