New Guidance on the Colorado Equal Pay for Equal Work Act

The Colorado Department of Labor and Employment’s Division of Labor Standards and Statistics recently issued revised guidance on the Colorado Equal Pay for Equal Work Act (CEPEWA) and the accompanying Equal Pay Transparency (EPT) Rules. The updated guidance, revised Interpretive Notice & Formal Opinion (INFO) #9 (Revised INFO #9), includes revisions and information regarding notice and posting requirements for out-of-state jobs, disclosure obligations as to “Help Wanted” signs, and noncompliant use of open-ended salary ranges and phrases in job postings.

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Parties Stipulate to Dismissal of Legal Challenge to Colorado Equal Pay for Equal Work Act

On July 6, 2021, the parties to a lawsuit challenging the Colorado Equal Pay for Equal Work Act (CEPEWA) filed a stipulation to dismiss the action without prejudice, with the litigants bearing their own costs and attorneys’ fees. On July 7, 2021, the case was terminated pursuant to the stipulation of dismissal.

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Accrued but Unused Vacation Pay Must Be Paid Out Upon Termination of Employment in Colorado

Colorado’s Supreme Court found that Colorado employees receiving vacation time must be paid out accrued but unused time when their employment is terminated. In Carmen Nieto v. Clark’s Market, Inc., the state Supreme Court held that if an employer chooses to provide vacation pay, all accrued but unused vacation pay must be paid to employees upon termination and that no agreement to the contrary will be enforced.

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California Non-Compete and Trade Secret Catch-Up

Non-Competes

California is notorious in the non-compete world for its prohibition and extreme scrutiny of individual non-compete and other types of restrictive covenant agreements. These types of agreements between two businesses, however, have received less attention.

In August, the Supreme Court of California in Ixchel Pharma, LLC v. Biogen, Inc., 470 P.3d 571, 573 (Cal. 2020), examined an agreement between two businesses and found “that a rule of reason applies to determine the validity” of business-to-business non-compete agreements. While some commentary on Ixchel has examined the validity of business-to-business non-compete agreements, the larger focus of the Ixchel case was “whether contractual restraints on business operations or commercial dealings are subject to a reasonableness standard under [California Business and Professions Code] section 16600.” Id. at 581 (emphasis added). It is important to note that the Ixchel court reiterated California’s strong position that agreements not to compete related to the termination of employment are invalid and not subject to a reasonableness test. Id. at 583-584. The Ixchel court adopted the reasonableness standard from the Cartwright Act (California’s antitrust law which generally assesses whether an agreement promotes or suppresses competition) for application to business-to business non-competes and further stated that its decision potentially affects all California contracts “that in some way restrain a contracting party from engaging in a profession, trade, or business.” Id. at 581, 588.

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Colorado Passes Paid Family and Medical Leave Law

Starting on January 1, 2024, Colorado employees will be entitled to take 12 weeks of paid family and medical leave as a result of the passage of Colorado Proposition 118, the Paid Medical and Family Leave Initiative. Employees will be able to take an additional four weeks of paid leave in connection with pregnancy or childbirth complications. The paid leave will be funded through a payroll tax shared equally by employers and employees, starting on January 1, 2023.

For the full alert, visit the Faegre Drinker website.

Now What? COVID-19 + Flu Season

Many workplaces are likely to see a rise in flu activity at the same time as an increased rate of COVID-19 infections. The paramount concern for all employers should be keeping sick workers out of the workplace. Now is the time to get ahead of the questions that are likely to arise. The CDC’s and other guidance will certainly continue to evolve, and it is important to continue to monitor developments and adjust policies accordingly. However, having a plan in place will bode well for employers and employees alike and will provide a solid starting place to incorporate new guidance as it is issued.

For the full alert, visit the Faegre Drinker website.