On June 7, 2023, Governor Jared Polis signed Senate Bill 23-172 into law, radically transforming Colorado’s employment discrimination legal landscape by expanding the Colorado Anti-Discrimination Act.
On June 2, 2023, Colorado enacted the Job Application Fairness Act (JAFA), joining California, Connecticut, Minnesota, and Pennsylvania as states prohibiting employers from requesting age-related information during the hiring process. Starting on July 1, 2024, JAFA will bar Colorado employers from requesting or requiring that job applicants provide information related to “age, date of birth, or dates of attendance at or graduation from an educational institution” on initial employment applications.
Employers across the country have grappled with the requirements of Colorado’s Equal Pay for Equal Work Act (EPEWA), since it went into effect on January 1, 2021. The act was the only one of its kind at the time, and has spawned similar legislative efforts around the country, including in California, New York, and Washington. Yet the Centennial State has stood alone in its requirement that employers notify their Colorado employees of “promotional opportunities” available to them, no matter where those opportunities exist in the organization or whether those employees might be qualified for or interested in such jobs.
On June 2, 2023, Governor Jared Polis signed into law Senate Bill (SB) 23-017, which expands the qualifying reasons an employee may take leave under the Colorado Healthy Families and Workplaces Act (HFWA).
The end of the public health emergency (PHE) began the sunsetting of the Colorado Healthy Families and Workplaces Act’s requirement for employers in Colorado to provide PHE leave stemming from the COVID-19 pandemic. This means that Colorado employees may use PHE leave through June 8, 2023.
In January 2023, Denver Mayor Michael Hancock approved an ordinance (File No. 22-1614) passed by the Denver City Council that provided new avenues for workers in the City and County of Denver to pursue claims for wage theft. Denver Labor, a division of the Auditor’s Office, recently adopted rules regarding enforcement of the new ordinance, providing important clarification on several aspects of the ordinance.
In addition to issuing annual statements showing the total compensation paid and income tax withheld for the preceding calendar year, Colorado employers are now required to notify employees in writing of the availability of income tax credits.
In December 2022, Ogletree Deakins launched its OSHA Tracker based on analysis of the Occupational Safety and Health Administration’s (OSHA) publicly available inspection and citation data, which dates back to the 1970s. Now, in addition to featuring individual state data and OSHA regional information, the OSHA Tracker has been enhanced with city information.
On January 10, 2023, Denver Mayor Michael Hancock approved an ordinance (File No. 22-1614) passed by the Denver City Council that will provide new avenues for workers in the City and County of Denver to pursue claims for wage theft.
The Colorado Department of Labor and Employment (CDLE) recently released the 2023 Publication and Yearly Calculation of Adjusted Labor Compensation Order (2023 PAY CALC Order). The 2023 PAY CALC Order has increased the compensation thresholds applicable to a variety of Colorado wage-and-hour and workplace requirements.
For many employers, a new year is a new opportunity to update policies, procedures, and agreements—including restrictive covenants. In addition to ensuring compliance with applicable state requirements as to timing, consideration, and restrictions, companies need to be aware of applicable compensation minimums for employees being asked to sign noncompetition and nonsolicitation agreements. With the start of the new year, many states have increased minimum compensation floors for such employees.
Several state and local minimum wage rates will increase in 2023, with a majority of the changes effective on January 1, 2023. The following chart lists state and certain major locality minimum wage increases for 2023—and future years, if available—along with the related changes in the maximum tip credit and minimum cash wage for tipped employees.
Beginning in 2023, Colorado employees whose employers do not offer a retirement plan will have access to an optional retirement savings plan through a state-facilitated retirement savings program, the Colorado SecureSavings program.
Respiratory syncytial virus (RSV) and influenza cases are surging across the United States while COVID-19 continues to spread. Faced with hospital beds filling up and experts warning that this could be one of the most severe respiratory illness seasons in recent years, two states—Oregon and Colorado—have declared public health emergencies that will impact state sick and family leave requirements as workers struggle with the illnesses or to care for sick children.
On November 8, 2022, voters in Maryland and Missouri overwhelmingly approved ballot measures to legalize recreational marijuana, becoming the 20th and 21st states to do so. And, as part of the ballot initiative in Missouri, the existing medical marijuana law was amended to include express employment protections for medical marijuana cardholders.
On November 8, 2022, voters in Colorado passed a ballot initiative to decriminalize possession of and legalize limited use of psychedelic mushrooms and other plant- and fungi-derived psychedelic drugs by those 21 years of age or older.
On November 8, 2022, voters in Colorado will vote on whether to legalize psychedelic mushrooms and other naturally occurring psychedelic drugs through a ballot initiative. Proposition 122, or the “Natural Medicine Health Act of 2022,” would decriminalize psychedelics and require the state to establish a regulated system for accessing psychedelics by those 21 years of age or older.
Colorado employers may want to begin preparing for the implementation of Colorado’s new state-run Paid Family and Medical Leave Insurance (FAMLI) program. While Colorado voters approved Proposition 118 nearly two years ago, which set the path for implementation of the FAMLI program, employers and employees will not feel its effects until January 1, 2023. However, due to the impact FAMLI will have on the employment leave landscape, employers may want to begin educating themselves and their employees now on its requirements, as compliance will require cooperation across multiple departments.
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.
