C-Level Law

What should an employer do when an employee asks to bring an animal to work in connection with a health issue? The answer depends in part on whether the animal is a service animal or an emotional support animal (sometimes called a “comfort animal” or “companion animal”). 

On August 7, 2023, the “POWR” Act will go into effect. As discussed in a previous blog post, this new law will change the law of workplace discrimination and harassment in many ways. In some cases, the implications will not be clear until Colorado courts issue opinions construing POWR’s provisions. However, it is clear that it will be very difficult to have a non-disparagement, non-disclosure, or confidentiality agreements in separation agreements and employment settlement agreements in Colorado. 

Under Title VII of the Civil Rights Act of 1964, the primary federal employment discrimination law in the United States, employers are required to make reasonable accommodations for religious practices. For example, in 2015, the Supreme Court held that Abercrombie & Fitch was required to allow a Muslim employee to wear a headscarf while working.

On June 29, 2023, in an opinion written by Chief Justice Roberts, which five other justices joined, the U.S. Supreme Court struck down admissions programs at Harvard University and the University of North Carolina because they considered race as a factor in admitting applicants. The Court held that the programs violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and Title VI of the Civil Rights Act of 1964. 

As Pride Month draws to a close, it may be good to recall the history of protection of LGBTQIA+ workers. As in most states, until recently, there was no legal protection of LGBTQIA+ workers in Colorado. Then, in 1990, the Denver City Council passed an ordinance making it illegal to discriminate or harass employees on the basis of sexual orientation in the City and County of Denver. But, that law did not apply outside the City and County of Denver.

A no-poach agreement is an agreement between employers not to hire each other’s employees. Such agreements have an obvious negative impact on competition for labor and employees’ ability to find work, usually unlawful under antitrust laws. However, under some circumstances, they can be permissible. 

In 2019, the Colorado Legislature passed the Equal Pay for Equal Work Act (the Act), which went into effect January 1, 2021. The Act contained provisions regarding gender-based wage discrimination claims (paying employees of one gender more than employees of a different gender), pay “transparency” and “opportunities for advancement and promotion.” Soon thereafter, the Colorado Department of Labor and Employment (CDLE) enacted Equal Pay Transparency Rules (EPT Rules) which explained and expanded upon the transparency and opportunities provisions of the Act.

On Thursday, May 11, 2023, the federal public health emergency, imposed in response to the COVID pandemic, will end. Click here to read more. Colorado’s public health emergency ended earlier this year. Click here to read more. 

The Colorado Legislature has passed the Protecting Opportunities and Workers’ Rights Act, Senate Bill 23-172 (POWR). Governor Jared Polis is expected to sign it. POWR makes significant changes to the law of workplace harassment and discrimination. 

In August of 2022, the Colorado Legislature amended Colorado’s law governing covenants not to compete, making them significantly more difficult to enforce. Covenants not to compete prohibit employees from competing against a former employer and/or soliciting its customers (in Colorado, restrictions on soliciting other employees are not governed by the same standards).

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.