C-Level Law

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.

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.