C-Level Law

The National Labor Relations Board (NLRB) has issued an opinion holding the confidentiality and non-disparagement clauses in a separation agreement offered to a group of 11 union employees pursuant to a reduction in force violated the National Labor Relations Act (NLRA). Overruling two previous cases, in McLarin v. McComb, the Board held that such clauses are illegal if they “have a reasonable tendency to interfere with, restrain, or coerce employees in their exercise” of rights in the NLRA to engage in concerted activity (Section 7 of the NLRA)—communicating with other employees about the terms and conditions of employment. 

House Bill 23-1118, the Fair Workweek Employment Standards Act, failed in a hearing before the House Business Affairs & Labor Committee. The bill would have imposed a number of difficult requirements on covered employers regarding scheduling and hiring.

On February 27, 2023, SB23-172, the Protecting Opportunities & Workers' Rights Act (“POWR”), was introduced in the Colorado Senate. Like its predecessors in previous sessions, POWR would, if enacted, make sweeping changes to the law of employment discrimination and harassment in Colorado.

One of the trickiest issues faced by employers is proper classification of employees as exempt or non-exempt from the overtime requirements of the federal Fair Labor Standards Act (FLSA) and corresponding state laws. Exempt employees need not be paid overtime but there are strict requirements for classifying an employee as exempt. In this post, Adrian Castro of Fairfield and Woods, P.C.’s Employment Law Department tells us about a recent Supreme Court Case regarding one of the most confusing exemptions, the “Highly Compensated Employee Exemption.” 

On January 9, 2023, the Denver City Council passed an ordinance amending the Revised Municipal Code to provide new remedies for failure to pay wages. The new ordinance provides that the Denver Auditor may investigate and impose fines of up to $25,000 for an employer’s failure to pay wages, and treble damages. Like many other employment laws, there is a civil action for aggrieved employees, penalties, and a prevailing employee may recover their attorneys’ fees. Retaliation is also prohibited. 

On January 5, 2023, the FTC published a proposed notice of rulemaking that seeks to classify almost all non-compete and some non-disclosure agreements as unenforceable forms of unfair competition. While Colorado non-compete laws were recently revised to make it more difficult to enforce non-compete agreements, this new rule would have the effect of rendering the vast majority of Colorado non-compete agreements unenforceable.

Public Health Emergency Leave (PHE) under the Colorado Healthy Families and Workplaces Act (HFWA) now applies to flu and other respiratory illnesses. Enacted in the summer of 2020 in response to the Coronavirus pandemic, the HFWA requires employers to provide employees with paid leave for certain health conditions and certain family leave. During a public health emergency, the leave requirement is expanded from 48 hours to 80 hours for leave related to the public health emergency. PHE leave is not specific to COVID. However, until recently, it has not been applied to any other health condition.

The United States Supreme Court recently conducted oral argument on two cases involving affirmative action in the context of college admissions. In Students for Fair Admissions, Inc. v. Presidents and Fellows of Harvard College student groups argued that two universities’ admissions programs impermissibly favored Black, Hispanic and Native America applicants to the detriment of white and Asian applicants.  Although these cases do not involve affirmative action or diversity programs in employment, they could lead to other decisions in the employment context. 

The world has changed over the last few years, and Colorado is no different. A plethora of new employment laws have been enacted in Colorado generally expanding employee protections and rights. Businesses must keep on top of these changes, as many of the new laws create significant penalties for non-compliant employers.  

This client broadcast is meant to remind clients of some of these changes, and provide an update on some changes scheduled within the next year. Below is a summary; the laws described are significantly more complex in practice, and it does not cover every change in the last few years. Fairfield and Woods is more than willing to answer any questions you may have on these changes, as well as assist in making sure your operations are update.  

On October 13, 2022, the U.S. Department of Labor (DOL) proposed a new rule regarding independent contractors. The Proposed Rule supersedes the previous Rule issued in 2021. 

Kate Stimson, a criminal defense lawyer at Stimson Labranche Hubbard, joins Colin Walker to discuss criminal issues in the workplace. In this conversation they cover what happens if there is an investigation or if law enforcement brings charges against someone in the workplace. Watch their video below to learn best practices for responding, when to reach out to your employment lawyer, when to get a criminal lawyer involved, and what to expect as the investigation progresses. 

The Colorado Legislature passed a number of important new employment laws in the 2022 legislative session. These laws are discussed in a previous blog post (May 25, 2022). Some of the new laws went into effect immediately. Others will become effective in 2023. However, several of the most significant ones will become effective this Wednesday, August 10, 2022.