Colorado’s Public Health Emergency Leave Now Covers COVID-19 and ‘Similar Respiratory Illnesses’

Colorado’s Healthy Families and Workplaces Act (the HFWA) requires employers provide up to two weeks of supplemental paid sick leave — often referred to as public health emergency leave (PHEL) — when a public health emergency is declared. As we previously described, this leave is awarded in addition to employees’ regular paid sick leave required by Colorado law. C.R.S. § 8-13.3-405. PHEL is provided per public health emergency and is to be used for reasons specifically connected to the public health emergency.

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Non-Compete Agreements: Provide Them Ahead of Time – But Don’t Let Them Be Signed

On March 8, 2022, the Fifth Circuit Court of Appeals held that a non-compete agreement was not enforceable because the employer seeking to enforce the agreement had presented it to the employee, and the employee had signed it, before the employee’s first day of work.  A few months later, Colorado Governor Jared Polis signed into law a new statute requiring that notice of a non-compete agreement be provided to prospective employees before they accept an offer of employment.

In finding a non-compete provision must strictly comply with Louisiana law, the court in Rouses Enterprises, L.L.C. v. Clapp, No. 21-30293 (5th Cir. Mar. 8, 2022), found that Louisiana law (LA. REV. STAT. ANN. § 23:921(A)(1)) permits certain non-compete agreements between employers and employees, but not between job applicants and potential employers.  Thus, the court reasoned, a non-compete agreement signed by a prospective employee before her actual date of hire was unenforceable.

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Southwest Airlines Files Challenge to the Colorado Healthy Families and Workplaces Act

Southwest Airlines Co. has filed a complaint for declaratory judgment in the U.S. District Court for the District of Colorado challenging the application of the Colorado Healthy Families and Workplaces Act (HFWA) to its Colorado employees.

The complaint, which names Scott Moss in his capacity as the director of the Colorado Department of Labor and Employment’s Division of Labor and Statistics, along with Philip J. Weiser in his capacity as the attorney general of Colorado, alleges that the application of the HFWA to Southwest employees is preempted by the federal Airline Deregulation Act and the federal Railway Labor Act, and that it violates the Commerce Clause of the U.S. Constitution.

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Coming August 2022: Colorado Substantially Limits Noncompete Agreements

Beginning August 10, 2022, Colorado will drastically narrow the circumstances in which Colorado employers can seek to enforce noncompete and other restrictive employment agreements. Despite Colorado law already having a general restriction against the use of noncompete agreements, the Colorado General Assembly recently passed, and Gov. Jared Polis has now signed, HB 22-1317. With this bill, Colorado joins the growing number of states enacting increased employee protections against restrictive covenant agreements, including banning such agreements with workers earning below a certain threshold.

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Colorado Issues New Guidance on Prohibition Against Forfeiture of Earned Vacation or PTO

A series of recent developments in Colorado law have made it clear that employers are prohibited from causing employees to forfeit earned vacation time. A compilation of recent developments and the Colorado Department of Labor and Employment’s current position are contained in Interpretive Notice & Formal Opinion (INFO) #14, which explains that:

  1. Employees must be paid all earned vacation pay when their job ends.
  2. No employment policy or agreement can waive or forfeit earned vacation at any time.
  3. All paid leave which can be used at the discretion of the employee is considered “vacation pay” subject to the non-forfeiture rules.

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Several States are Increasing Penalties for Enforcing Non-Compete Agreements

As non-competition laws and the scrutiny of non-compete agreements continue to be in the spotlight, several states are revisiting their non-compete laws.  Colorado has been in the spotlight after the Colorado Legislature passed S.B. 21-271 on July 6, 2021 in an effort to reform the sentencing provisions related to numerous petty offenses and misdemeanors. As a result, several Colorado laws related to labor and employment are affected, including Colorado’s statute addressing restrictive covenant agreements, C.R.S. § 8-2-113.

Under C.R.S. § 8-2-113, it is unlawful to: intimidate workers in order to limit their ability to engage in lawful work; and enter into covenants that restrict trade, such as non-compete and non-solicitation agreements, unless the covenants fit within limited exceptions provided under the statute. The penalty if convicted for violating the non-compete statute is currently a misdemeanor punishable by a fine between $10–$250, or jail time of not more than 60 days, or both. C.R.S. § 8-2-115.   Effective March 1, 2022, the penalty for violating the non-compete statute will be increased to a class 2 misdemeanor punishable by up to 120 days in jail, or a fine of up to $750, or both, as a result of the changes from S.B. 21-271.  S.B. 21-271 also amends the text of C.R.S. § 8-2-113 to include the increased penalty as a new subsection (4).

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