Denver Revises Municipal Code to Increase Civil Penalties Related to Wage Theft Violations and Expands “Up the Chain” Liability

On Tuesday, January 10, 2023, Denver Mayor Michael Hancock signed Bill 22-1614 after it passed the Denver City Council the previous day by unanimous vote. With the Bill’s passage comes increased penalties and new requirements related to wage theft, specifically including joint liability for general contractors, effective upon publication.

Denver’s minimum wage ordinance imposes a current minimum wage of $17.29 per hour, and before Bill 22-1614 passed, the ordinance provided certain penalties for employers that did not pay their workers based on the designated minimum wage. Indeed, prior to the bill’s passing, Denver’s minimum wage ordinance allowed employees to file complaints to the City Auditor within one year of a violation and provided a private right of action for three years to employees to seek to recover unpaid wages plus 12% interest, $100 for each day the violation continued, and liquidated damages three times the amount of unpaid wages.

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Ready or Not, Colorado’s FAMLI Program is Here and With New Year Requirements

Colorado’s long-anticipated Family and Medical Leave Insurance (FAMLI) program is right around the corner for employee use — but employer requirements are already here. Effective January 1, 2023, employers have certain obligations under the FAMLI program, including notice requirements and upcoming premium payments. Below is a refresh on FAMLI program basics, an outline of current FAMLI program requirements, considerations for the upcoming months in preparation for 2024, and some additional information regarding private FAMLI programs.

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Summary of Cal/OSHA’s Non-Emergency COVID-19 Prevention Regulations

On December 31, 2022, the Cal/OSHA Emergency Temporary Standards (ETS), as previously summarized, expire after being in place since November 2020. On December 15, 2022, the California Occupational Safety & Health Standards (Cal/OSHA) Board voted to adopt non-emergency COVID-19 regulations to replace the ETS.

The new regulations are set to take effect in January 2023 after the Office of Administrative Law (OAL) completes its review. Once finalized, the new regulations will remain in effect for two years (but the recordkeeping requirements will remain in effect for three years).

The non-emergency regulations contain some of the same requirements as the ETS, but they also include new provisions. According to Cal/OSHA’s updated Fact Sheet, the new provisions are intended to be easier for employers to follow and allow for greater flexibility if changes are made pursuant to California Department of Public Health (CDPH) guidance.

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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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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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