CDLE finalizes new WARNING rule

As noted in a prior blog post, the CDLE has finalized a crop of new rules on a variety of topics. This post addresses its WARNING (Whistleblower, Anti-Retaliation, Non-Interference, and Notice-Giving) Rules, effective January 1, 2021.  The WARNING Rules implement Colorado’s new whistleblower and related notice laws. Highlights of the rules include the following:

  • An explanation of the posting obligation that requires employers to post the state’s HFWA poster  with translations available from the CDLE for any languag espoken by at least 5% of the workforce in a conspicuous location in each workplace where individuals work, such as bulletin boards or break rooms, by time clocks or at entrances. In the event that is not possible Rule 4.1.4 describes a process for providing the actual poster to each new hire or on “a web-based platform.”
  • An explanation of the “reasonable” and “good faith” requirements a whistleblower must meet to be protected, to include under Rule 5.1.2 a statement by the worker, without necessarily citing a specific rule or guideline, “what action, condition, or situation they believe constitutes a qualifying violation of a rule regarding, or significant threat to workplace health or safety.”
  • An explanation in Rule 5.2.3 that, while Colorado’s new law permits workers to insist on using their own more protective PPE, such PPE must itself be sourced “from a reliable provider” if the company has provided PPE compliant with federal, state and local recommendations that was sourced from a reliable provider.
  • Perhaps most controversially, an explanation in Rule 5.2.4 that whistleblower cases under this new law will entail a lower burden of proof for an employee who seeks to prove they were constructively discharged than most other whistleblower laws require. The worker will be able to prove a constructive discharge if he proves he blew the proverbial whistle in compliance with the new rules, including Rule 4.1.4 (above), the company failed to remedy the concern “immediately,” continuing to work would have posed a “substantial threat to health or safety for any person,” and he quit as a result thereof. In its prefatory Statement explaining the rule, the CDLE confirms this means that a plaintiff will not be required to prove the employer took an adverse employment action against the plaintiff; in other words, it will not be required to prove discharge, demotion, cut in pay, hours, etc.

Employers in Colorado should take time to familiarize themselves with these new rules.

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Colorado Court of Appeals holds, and new COMPS Order 37 confirms, that Colorado state wage laws, like federal wage laws, exempt interstate drivers even if the driver himself does not cross state lines

The Colorado Court of Appeals held that the “interstate driver” exemption in the Colorado state wage laws (including the COMPS Orders), like federal wage law (including FLSA), exempts drivers who transport goods moved in interstate commerce, even if the driver himself only drives the final leg of transport within the state, without himself crossing state lines, especially where the driver is covered by DOT driver regulations.   The case brings Colorado in line with other courts to address the issue.

Source: Gomez v. JP Trucking, Inc., case no. 17CA2384, 2020 COA 153 (Colo.App. 11/5/2020).

Updated: Shortly after the Court issued its decision, the Colorado Department of Labor and Employment (CDLE) issued COMPS Order 37, in which it appears to have reversed its prior position in COMPS Order 36, which was rejected by the Court in Gomez, and now agrees with the ruling in Gomez; however, the CDLE included in its new COMPS Order 37, rules 2.4.6 and 2.2.6, where it mandates as a condition of such exemption, that such drivers also are paid at least 50 hours of pay at minimum wage, with overtime, which calculates in 2021 to be a minimum weekly payment of $677.60.

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CDLE finalizes new rules regarding Colorado’s new paid leave laws

As noted in a prior blog post, the CDLE has finalized a crop of new rules on a variety of topics. This post addresses its Wage Protection Rules, effective January 1, 2021.  The Wage Protection Rules focus on issues related to Colorado’s new paid leave law (HFWA, Health Families and Workplace Act). Highlights of the rules include the following:

  • Rule 2.7.4: How to count employees for the purpose of determining whether a small business is under the 16-employee threshold and may, therefore, qualify for delayed implementation of HFWA’s 48 hour/6 day leave requirements until January 1, 2022.
  • Prefatory Statement and Rule 3.5.4(A)-(B): The requirements for a company’s current paid leave policies to satisfy the HFWA requirement for 48 hours (6 days for salaried employees) of general sick leave, to include the following:
    • The policy must provide for at least HFWA’s required 48 hours (6 days).
    • The policy must allow its leave to be taken for all the same reasons as HFWA. Employers are reminded that HFWA permits leave to be taken for more than just the employee’s illness. As summarized by the CDLE in its INFO 6b, HFWA permits an employee to take this time for any of the following reasons:

(1) having a mental or physical illness, injury, or health condition that prevents them from working;

(2) needing to get preventive medical care, or to get a medical diagnosis, care, or treatment, of any mental or physical illness, injury, or health condition;

(3) needing to care for a family member who has a mental or physical illness, injury, or health condition, or who needs the sort of care listed in category (2);

(4) the employee or the employee’s family member having been a victim of domestic abuse, sexual assault, or criminal harassment, and needing leave for related medical attention, mental health care or other counseling, victim services (including legal services), or relocation; or

(5) due to a public health emergency, a public official having closed either (A) the employee’s place of business, or (B) the school or place of care of the employee’s child, requiring the employee needing to be absent from work to care for the child.

    • The policy cannot impose stricter conditions on an employee’s ability to accrue, use and be paid leave, nor can it require notice or documentation (see below) not permitted to be required by HFWA.
      • Employers are reminded that HFWA contains a strict formula for minimum accrual rates, though frontloading is also permitted.
      • Employers are also reminded that HFWA does not permit a delay on usage, such as many sick leave policies that commonly now say sick leave may not be used until after, say, the first 90 days of employment.
    • The policy must also confirm that its leave includes HFWA’s required leave and that, therefore, employees will not receive additional HFWA leave if they use the leave (such as PTO) for other reasons first, except the company will supplement their leave banks as needed to grant 80 hours of pandemic leave in the event of a public health emergency.
      • Employers should carefully consider how they word this disclaimer, so that they do not inadvertently interfere with, minimize, or chill an employee’s HFWA rights.
  • Prefatory statement and Rule 3.5.2: HFWA’s requirement that the employee be paid leave on the basis of “the same rate and with the same benefits, including health benefits,” as if he’d worked, includes all compensation missed while on leave, including base pay, overtime, bonuses, and holiday pay, and even premium pay and shift differentials.
  • Prefatory statement and Rule 3.5.3(C): Explanation that, where an employee is eligible for both HFWA’s 48 hours (6 days for salaried employees) of general sick leave and 80 hours  (10 days for salaried employees) of pandemic leave, the employee must be allowed to take the 80 hours of pandemic leave first before exhausting their other paid leave, such as the 48 hours of HFWA leave.
  • Rule 3.5.3(B): When an employee takes intermittent HFWA leave it is generally taken in 6-minute increments, unless the employer specifies a different increment in its policy, up to 1 hour.
  • Rules 3.5.4-3.5.5: The notice and documentation requirements for leave. Employers are reminded that the documentation requirements are not significant and leave generally cannot be denied for lack of documentation of the sort many employers are used to requiring for sick leave. The CDLE explains the ability for employers to require documents, as follows (emphasis added):

An employer may require “reasonable documentation” that leave is for a HFWA-qualifying purpose only if the leave requested or taken is for “four or more consecutive work days,” C.R.S. § 8-13.3-404(6), defined as four consecutive days on which the employee would have ordinarily worked absent the leave-qualifying condition, not four consecutive calendar days. An employer may not require an employee to provide documentation that leave is for a qualifying reason “related to [a] public health emergency” under C.R.S. § 8-13.3-405(3), (4).

(A) When documentation is required, an employer may request only “reasonable” documentation, which is defined as not more documentation than needed to show a HFWA-qualifying reason for leave, as described in subparts (B), (C), and (D) below, and an employer shall not require disclosure of “details” regarding the employee’s or family member’s “health information” or the “domestic violence, sexual assault, or stalking” that is the basis for HFWA leave (C.R.S. § 8-13.3-412(1)).

(B) To document leave for a health-related need under C.R.S. § 8-13.3-404(1)(a), (b):

(1) If the employee received any services (including remote services) from a health or social services provider for the HFWA-qualifying condition or need, a document from that provider, indicating a HFWA-qualifying purpose for the leave, will suffice.
(2) An employee who did not receive services from a provider for the HFWA qualifying leave, or who cannot obtain a document from their provider in reasonable time or without added expense, can provide their own writing indicating that they took leave for a HFWA-qualifying purpose.

(C) To document leave for a safety-related need covered by C.R.S. §§ 8-13.3-404(1)(c) (i.e., domestic abuse, sexual assault, or criminal harassment): A document under subpart (B)(1) (from a health provider or a non-health provider of legal services, shelter services, social work, or other similar services) or an employee writing under (B)(2) will suffice, as will a legal document indicating a safety need that was the reason for the leave (e.g., a restraining order, other court order, or police report).
(D) Submission of documentation to an employer may be provided (1) by any reasonable method, including but not limited to electronic transmission, (2) at any time until whichever is sooner of an employee’s return from leave (or termination of employment, if the employee does not return), (3) without a requirement of the employee’s signature, notarization, or any other particular document format.
(E) Confidentiality of leave-related information and documentation. Any information an employer possesses regarding the health of an employee or the employee’s family member, or regarding domestic abuse, sexual assault, or criminal harassment affecting an employee or employee’s family member, shall be treated as confidential and may not be disclosed to any other individual except the affected employee, unless the affected employee provides written permission prior to such disclosure. C.R.S. § 8-13.3-412(2)(c). If the information is in writing, it shall be maintained on a separate form and in a separate file from other personnel information, and shall be treated as a confidential medical record by the employer. C.R.S. § 8-13.3-412(2)(a)-(b).

(F) If an employer reasonably deems an employee’s documentation deficient, without imposing a requirement of providing more documentation than HFWA or applicable rules permit, prior to denying leave, the employer must: (1) notify the employee within seven days of either receiving the documentation or the employee’s return to work (or termination of employment, if the employee does not return), and (2) provide the employee the minimum of seven days to cure deficiency after the employee is notified that the employer deems the existing documentation inadequate.

  • Rule 3.5.7 explains an employer’s recordkeeping obligations, including an obligation to keep all records for 2 years.
  • Rule 3.5.7 confirms an employer’s obligation to tell an employee, upon request, how much leave they have accrued and how much they have used. Requests may not be made more often than monthly, except additional requests can be made if there is a possible need for HFWA leave. This information may be communicated to the employee, among other ways, by reflecting such amounts on a pay stub.
    • Employers are cautioned that HFWA and Rule 3.5.7 talk about an employer’s obligation to show accrued and used amounts as if different. It isn’t clear if simply showing the employee’s accrued and unused balance is sufficient. Example compare telling an employee (1) <<This year you accrued 48 hours, of which you have used 8 hours, leaving you 40 hours as of this paycheck>> versus (2) <<You have 40 hours, accrued and unused, as of this paycheck.>>
  • Rule 5.1.4 discusses the CDLE’s authority to issue remedies in the event an administrative claim is filed with it for a violation. These remedies include monetary relief, such as unpaid wages, penalties, and fines, back pay plus either reinstatement or front pay, plus such other amounts as the CDLE finds it is authorized to award.

Employers are reminded that HFWA’s current 80 hours of pandemic leave will expire at the end of 2020. In an informal phone call with the CDLE, this author was advised that the agency believes a declaration effective on or after January 1, 2021 will be required to trigger 80 hours of pandemic leave starting January 1, 2021, in other words, that the current declarations of public health emergencies do not suffice — especially since they predate HFWA’s enactment. In what this author would think is the likely event of future declaration(s) effective on or after January 1, 2021, the CDLE advised that it believes employees will receive a fresh 80 hours at that time; in other words, assume a hypothetical employee has used 71 hours of the current pandemic leave by December 31, 2020, leaving him only 9 hours for this year. A fresh declaration will top his pandemic leave back up to 80 (not 9, nor 9+80=89).

Employers in Colorado should take time to familiarize themselves with these new rules.

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CDLE issues Equal Pay Transparency rules under Colorado’s Equal Pay for Equal Work Act

As noted in a prior blog post, the CDLE has finalized a crop of new rules on a variety of topics. This post addresses its Equal Pay Transparency Rules, effective January 1, 2021.  The Equal Pay Transparency Rules focus on issues related to Colorado’s new Equal Pay for Equal Work Act (CEPEWA), especially its requirements for postings related to job openings and promotional opportunities. Highlights of the rules include the following:

  • Job Postings: Rule 4.1 explains the obligation to include in “all job postings, including but not limited to promotions,” help-wanted ad’s and Internet job listings, whether for an hourly or salaried position, “a range of hourly or the salary compensation, and a general description of all of the benefits and other compensation to be offered to the hired applicant,” quoting CRS 8-5-201(2). The CDLE explains this requires including:
    • If “a range thereof” is posted, then it must be no broader than “the lowest to the highest pay the employer in good faith believes it might pay.” The CDLE confirms that an employer may “ultimately pay more or less,” so long as the posted ranges was at the time the employer’s good faith estimate (rule 4.1.2).
    • And, a “general description” of “any bonuses, commissions, or other forms of compensation.”
    • And, a “general description” of all benefits, except “minor perks.” The CDLE explains anything that is tax-reportable will not be considered a “minor perk.”
  • Promotional Opportunities: Rule 4.2 explains the obligation to make “reasonable efforts” to “announce, post or otherwise make known” all “promotional opportunities” to then-current current employees.
    • Content: The information that must be provided for promotional opportunities is the same as for job postings, plus job title and the “means by which employees may apply.”
      • Confidentiality: There is a limited exception for promotional opportunities where the employer can demonstrate a “compelling need to keep a particular opening confidential because the position is still held by an incumbent employee who, for reasons other than avoiding job posting requirements, the employer has not yet made aware they will be separated” (rule 4.2.5(A)). This exception seems oriented to a situation where a company has decided to begin a search to replace a high level employee, such as a C-level officer, who hasn’t yet been told they will be terminated. This exception does not excuse notice forever, it only delays the obligation to provide notice until “any employees are told” of the opportunity; at that point all employees must be told, at least who have the minimum qualifications to do the job or who do a “substantially similar” job. And, this exception is eventually extinguished in its entirety once “the need for confidentiality ends;” in other words, once the CEO is told or the rumor mill distributes the news informally, notice must be provided.
    • To Whom: That information must be provided to all employees. An employer may not limit disclosure to only qualified employees. However, an employer may, after individuals express interest, “screen or reject candidates based on (their) qualifications” (rule 4.2.4).
    • How: An employer satisfies this obligation to “announce, post or otherwise make known” if it discloses the required information in a way that employees can effectively access within the workplace, including on the company’s intranet or by posting a hard copy on a bulletin board, so long as employees are told where to find such information and, if not all employees have access to that location, it is made known to the remaining employees in some other way.
    • When: The deadline for an employer to provide this notice is “the same calendar day and prior to making a promotion decision,” quoting CRS 8-5-201.
    • “Promotional Opportunity”: What constitutes a “promotional opportunity”? This has been one of the chief areas of speculation as employers await CEPEWA’s effective date January 1, 2021. Rule 4.2.5 brings some clarity, though there will definitely be no shortage of litigation on the issue.
      • Rule 4.2.1 defines a “promotional opportunity” as any time “when an employer has or anticipates a vacancy in an existing or new position that could be considered a promotion for one or more employee(s) in terms of compensation, benefits, status, duties or access to further advancement.” Thus a promotion is in the eye of the employee(s), not the employer, and the employee’s reason may be nothing more than a perceived sense of enhanced “status.” A promotion can exist whether it involves a position that is “existing or new.”
        • However, note, the language in rule 4.2.1 includes as an apparent requirement that the opportunity involve a “vacancy.” The importance of that word is not clear. Is it intended to mean that an increase in grade does not constitute a “promotional opportunity”? For example, assume an employee is hired into the position, Technician, at entry level, grade I, then as her skills progress and/or as she acquires seniority, she gains higher pay as a Technician level II, is that a “promotional opportunity” because there was an increase in pay and title, or is it not because there was no “vacancy” involved?
      • Rule 4.2.5(B) discusses “automatic” promotions “after (a) trial period.” No notice is required when a worker’s promotion is due to completion of a “trial period” and where the employee is guaranteed at hire, in writing, that they will be so promoted “within one year” after being hired. That guaranty can be included in any writing, to include an offer letter, an employment agreement, or a policy. The only conditions that an employer can impose are the employee’s “own performance and/or employer needs.”
        • In its prefatory Statement explaining these rules, the CDLE confirmed this exception is very limited and does not include “in-line” or “elevator” promotions. As examples of “elevator” promotions it gives the examples of elevations “from junior to senior positions, or from training to full positions.”
        • Question: Again, consider the hypothetical increase in grade (above). As noted above, there is no vacancy involved in that hypothetical, so arguably under rule 4.2.1, it does not count as a “promotional opportunity,” but does rule 4.2.5 and the prefatory Statement explaining it suggest that, even despite the lack of a “vacancy,” such an enhancement is a “promotional opportunity” for which notice must be given? As noted the progression in grade does bring with it increased compensation and arguably an enhanced sense of “status.”
        • Likewise, consider the common hypothetical that law firms will face. Typically law school graduates are hired as “associate” attorneys. Eventually, as their careers progress, some become “shareholders,” aka “partners” (depending on the firm’s legal entity, corporation or partnership). Is that elevation from associate to shareholder, a “promotional opportunity”? If so, must all law firms disclose to all employees of the firm (shareholder, associate, staff) the compensation ranges for their shareholders?  Here too there is again generally no “vacancy” involved; most firms do not limit elevations to some discrete number of vacancies in their shareholder ranks; there is however an increase in compensation and status.
      • Rule 4.2.5(C) posits an exception for “temporary, acting, or interim hires.” No promotional-opportunity notice is required before hiring a temp, or filling a vacancy with an acting or interim worker. Again though, it is a limited exception available only for 6 months and only if the person is hired without expectation to become “permanent.” “If the hire may become permanent, the required promotion posting must be made in time for employees to apply for the permanent position.”
    • Job Openings and Promotional Opportunities, Extraterritoriality: Rule 4.3 has probably received the most attention from the media. In these final rules, the CDLE walked back its proposed language regarding extraterritoriality. Now, employers need not provide either the job opening or promotional opportunity notice for “(1) jobs to be performed entirely outside Colorado, or (2) postings entirely outside Colorado.” In its prefatory statement the CDLE explains that does not include — in other words, notice is required for — each of the following situations:
      • “remote jobs” that “could be performed in Colorado” (emphasis in original),
      • “and even for (situations involving) non-Coloradoans hired for remote work (who) may move to Colorado after being hired by Colorado employers,”
      • and any “Internet posting accessible in Colorado.”

Employers in Colorado should take time to familiarize themselves with these new rules.

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CDLE finalizes crop of new rules

The Colorado Department of Labor and Employment (CDLE) has finalized a half dozen rules on a wide array of topics. Employers should take care to immediately familiarize themselves with these rules, as many take effect January 1, 2021. The rules can be found on the CDLE’s rulemaking page, where the CDLE summarizes its new rules with the following table that contains links to the actual rules themselves:

Adopted Rules Clean Version Redline Version Statement of Basis & Purpose

State Labor Relations Rules, 7 CCR 1103-12

 PDF PDF PDF
Colorado Whistleblower, Anti-retaliation, Non-interference, and Notice-giving (Colorado WARNING) Rules, 7 CCR 1103-11 PDF PDF PDF
Direct Investigations Rules, 7 CCR 1103-8 PDF PDF PDF
Equal Pay Transparency Rules, 7 CCR 1103-13 PDF PDF PDF
Colorado Overtime and Minimum Pay Standards (COMPS) Order #37, 7 CCR 1103-1 PDF PDF PDF
Wage Protection Rules, 7 CCR 1103-7 PDF PDF PDF

Individuals interested in receiving updates from the CDLE directly when it engages in the rulemaking process, may subscribe with the CDLE here.

Look for follow-up posts on this blog highlighting some of the key developments in some of these rules.

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Tenth Circuit holds no adverse employment action is required in a failure-to-accommodate case

The Americans with Disabilities Act recognizes several types of claims that a disabled worker might file against their employer. Typically statutory employment claims include a requirement that the plaintiff prove an adverse employment action, meaning that they suffered harm to their employment, such as being discharged, promoted or other material impact on the significant terms and conditions of employment. The adverse employment action element poses a threshold against de minimis claims.

The Tenth Circuit held that a disabled plaintiff who asserts their employer failed to provide a reasonable accommodation need not prove an adverse employment action. In the case before it, the jury found that, even if the employer may have failed to reasonably accommodate the plaintiff’s disability, it did not result in her discharge, demotion or other harm to the terms and conditions of her employment. Initially a panel of the Tenth Circuit affirmed, but, re-hearing the case en banc, the Tenth Circuit held, over a strong and sizable dissent, that no adverse employment action need be proven because a failure-to-accommodate is itself actionable.

Source: Exby-Stolley v. Weld County, No. 16-1412, — P.3d —, 2020 BL 417137 (10th Cir. 10/28/20)

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EEOC publishes final rule regarding its own ability to issue guidances

The EEOC, like some other administrative agencies, has historically issued what it calls informal guidances as a way of articulating the agency’s position on issues of law without having to go through the formal notice-and-comment rulemaking procedures required of regulations. The legal consequence, and even informal persuasive value, of these guidances is often litigated. On October 9, 2019, President Trump issued Executive Order 13891  to end the practice, requiring agencies to go through the rulemaking process instead. In implementation of that Executive Order, the EEOC published its final regulations 85 Fed.Reg. 69167, to be codified at 29 CFR 1695.

The EEOC’s new rules will require that all such guidances contain the following disclaimer:

The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or Commission policies.’

Additionally guidances will be subject to advance review by the Commissioners.

The EEOC’s new rules recognize a a category of guidances with particular “significance,” specifically those that may have an annual effect of $100-million or more  or otherwise “aversely affect in a material way the U.S. economy, a sector of the U.S. economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.” These “significant guidance documents” will have to be issued in accordance with formal rulemaking requirements. It is not clear how the EEOC will interpret this new regulation since, by definition, everything the EEOC does is intended to have an “affect” that is “material” on “jobs.”

Source: EEOC final rules, “Procedural Regulations for Issuing Guidance,” 85 Fed.Reg. 69167.

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Turn on your radios, for a look at the oral arguments this morning before the Supreme Court involving the ACA aka Obamacare

I’ll be on 850 KOA talking about this morning’s oral arguments in the Supreme Court case involving the Affordable Care Act (so-called Obamacare) probably around 7:45 AM MT. Tune in or stream.

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How will Proposition 118’s new paid Family and Medical Leave compare with currently required federal and state paid leave?

As noted on this blog, Colorado voters approved Proposition 118, which will mandate the creation of a new state-administered insurance program to provide paid Family and Medical Leave.

As Colorado employers know, the current federal Family and Medical Leave Act (FMLA) does not require paid leave. However, federal law currently does require paid leave in some instances, most notably up to 80 hours of pandemic leave with the possibility of an additional 10 weeks for pandemic-related childcare/school closure. Colorado’s newly mandated paid leave law already requires similar pandemic leave, plus on January 1, 2021 at least 48 hours of general paid sick leave.

This new Proposition 118 leave will be in addition to these leaves. Proposition 118 leave is not limited to pandemic-related needs. While this new leave will run concurrently with any federal unpaid FMLA leave, a company may not require an employee to exhaust other paid leave prior to taking this leave, though workers and companies may “mutually agree” to make up any difference between lost pay and the benefits provided with such other leave, quoting CRS 8-13.3-410.

Explanatory material in the Colorado legislature’s 2020 Blue Book summarizing Proposition 118, illustrated this benefit formula with the following table (parentheticals added):

Proposition 118 SB 20-205 (the portion of Colorado’s newly mandated paid leave law that is not limited to pandemic-related needs) FMLA
Type of leave Family and medical Medical Family and medical
Length of leave/paid or unpaid 12 weeks (up to 16 for pregnancy or childbirth complications); paid Up to 6 days; paid 12 weeks; unpaid
Eligibility requirements After $2,500 in wages have been subject to premiums Employee earns 1 hour paid sick leave per 30 hours worked; up to 48 hours per year After employee has worked for 12 months
Job protection After working for employer for 180 days N/A Yes
Employer size All employers (with 10 or more employees) Employers with 16 or more employees as of Jan. 2021; all employers beginning Jan. 2022 All elementary and secondary schools; public agencies; private businesses with 50 or more employees
Reasons for leave Birth or adoption of child; caring for self or family member; family member going on active duty in the military; sexual assault/abuse, & stalking Care for employee’s health/safety; care for a person that the employee needs to provide health/safety-related care Birth or adoption of child; caring for family member; family member going on active duty in the military

Interested in more information about Proposition 118 and the other new federal and state paid leave laws?

  • How will all this play out?
  • What do we know?
  • What can we expect?
  • What should HR professionals do to prepare their organizations?

Join us for a complimentary, engaging and interactive webinar.

L2S Legal, LLC is recognized by SHRM to offer SHRM-CP or SHRM-SCP professional credits (PDCs). This program is valid for 1.0 PDCs.

When: Thursday, Nov 12, 2020 Noon 12:00 PM Mountain Time (US and Canada) 

Register in advance for this webinar: https://us02web.zoom.us/webinar/register/WN_vGmrkeFcQ6iaM26Hg3iMGQ 

After registering, you will receive a confirmation email containing Zoom’s information for joining the webinar.

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Colorado voters approve Proposition 118 Paid Family and Medical Leave Insurance

Colorado voters approved Proposition 118, the Paid Family and Medical Leave Insurance Act, to be codified at CRS 8-13.3-401, et seq. The Act enhances already required paid leaves at the federal and state level by requiring the State of Colorado to create a new agency capable of administering a paid family and medical leave insurance-based program. The new agency will be called the DFMLI (Division of Family and Medical Leave Insurance).

Interested in more information about Proposition 118 and the other new federal and state paid leave laws?

  • How will all this play out?
  • What do we know?
  • What can we expect?
  • What should HR professionals do to prepare their organizations?

Join us for a complimentary, engaging and interactive webinar.

L2S Legal, LLC is recognized by SHRM to offer SHRM-CP or SHRM-SCP professional credits (PDCs). This program is valid for 1.0 PDCs.

When: Thursday, Nov 12, 2020 Noon 12:00 PM Mountain Time (US and Canada) 

Register in advance for this webinar: https://us02web.zoom.us/webinar/register/WN_vGmrkeFcQ6iaM26Hg3iMGQ 

After registering, you will receive a confirmation email containing Zoom’s information for joining the webinar.

When will Proposition 118 take effect?

Employers, employees and the State of Colorado have ample time to consider Proposition 118 and begin preparing. The first premiums will not be charged until January 1, 2023, and benefits will not be available until January 1, 2024.

What does Proposition 118 require?

Proposition 118 will require the State of Colorado to create the DFMLI, which will administer this new program. Premiums will be paid in part by employers and employees, although employers will be able, if they choose, to pay the employee-share. The insurance benefits to be paid to eligible workers will cover up to 12 weeks of family and medical leave, plus another 4 weeks in the event of pregnancy or childbirth complications. Such leave will be allowed on an intermittent basis. When “foreseeable,” at least 30-day notice will be required of the worker; when not, the worker will be required to provide as much notice as possible, CRS 8-13.3-405.

What employers will be exempt from Proposition 118?

Proposition 118 will apply to employers of 10 or more workers; in other words, employers of fewer than 10 employees will be exempt from paying premiums. Sole proprietors will have the opportunity to opt into the program if they choose for 50% of what their premium would otherwise be based on their income (see below).

Which employees will be eligible for Proposition 118?

Workers who have worked for their employer for at least 180 days, will be eligible to receive benefits after they have earned $2,500 in wages on which Proposition 118 taxes (premiums) were paid. It is not clear in Proposition 118’s language, but it appears that a worker need not work for a covered employer to claim these benefits; in other words, it appears that a worker who meets those wage-and-hour requirements may be able to claim these benefits even if their employer did not pay the company-side premiums (although employees of exempt small employers will be required to pay their own employee-side premiums).

CRS 8-13.3-403(7)’s definition of “employee” also includes those who provide “labor or services for the benefit of another, irrespective of whether the common law relationship of master and servant exists,” which arguably may include some traditional independent contractors.

What reasons will trigger paid leave under Proposition 118?

There will be five qualifying reasons for Proposition 118 leave:

  1. The worker’s own serious health condition
  2. A serious health condition of a family member
  3. Birth, adoption, or placement in foster care
  4. Certain military service
  5. “Safe leave,” which is a type of leave, defined in Proposition 118, related to absences for the worker’s or a family member’s experiences involving domestic violence, stalking or sexual assault

What will benefit levels be?

Benefits will be paid at 90% of the worker’s average weekly wage (AWW) to the extent the worker’s AWW is less than or equal to 50% of the Statewide AWW (SAWW), plus 50% to the extent the worker’s AWW exceeds 50% of the SAWW. In 2024, Proposition 118 anticipates the SAWW will be $1,340, at which time the maximum benefit will be $1,100 per week. In 2025, Proposition 118 estimates the SAWW will be $1,392, setting the maximum benefit of $1,253. Explanatory material in the Colorado legislature’s 2020 Blue Book summarizing Proposition 118, illustrated this benefit formula, as follows:

Weekly wage Weekly benefit Maximum annual benefit Percent of weekly wage
$500 $450 $5,400 90%
$1,000 $768 $9,216 77%
$1,500 $1,018 $12,216 68%
$2,000 $1,100 $13,200 55%
$3,000 $1,100 $13,200 37%

 

What will Proposition 118 cost and how much will employers and employees pay?

Proposition 118 is expected to cost a minimum of $575.4-million in the second half of the government’s 2022-23 budget year then $1.2-billion in its 2023-24 budget year. Of this, the State itself expects to spend $3.2-million in 2021-22 and $48.6-million in 2022-23. Employers will pay their share through premiums in the form of a payroll tax, but may split the premium 50/50 with their workers. Employers who choose will be able to absorb some or all of the employee share. The premium rate for the first two years, 2023 and 2024, will be 0.9% of the worker’s wages, of which half (i.e., 0.45%) will be paid by the company and the other half (i.e., the other 0.45%) will be paid by the employee, although a company will be able to choose to pay some or all of the worker’s share. In its third year, 2025, Proposition 118 will reset premium rates, so that the total aggregate amount of premiums paid into the program will equal 135% of 2024’s claims plus 100% of the DFMLI’s administrative costs. At that point, Proposition 118 sets a cap on the employee premium at 1.2% of the employee’s wages; Proposition 118 does not on an initial read appear to set a cap on the amount that will be imposed on employers once the premiums are reset starting in 2025.

During Proposition 118 leave, what happens with the worker’s health insurance?

During Proposition 118 leave, the worker’s health benefits will need to be continued though the worker will be required to pay their portion of such premiums, unless an employer chooses to absorb some or all of the employee’s share.

After Proposition 118 leave, will the worker be guaranteed a right to return to their position?

Proposition 118 provides that a worker who takes Proposition 118 leave will be entitled to return to their same position or a position with the same pay, benefits, seniority and status.

Additional expected requirements of Proposition 118

In addition, Proposition 118 prohibits retaliation and discrimination against workers who request or use Proposition 118 benefits.

While Proposition 118 contains some definitions and explanations of this new program, there is substantial work yet to be done to stand up this new program. Litigation is anticipated.

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Tenth Circuit tightens up on Title VII claims

In a case titled Sanderson v. Wyoming Highway Patrol, the Tenth Circuit tightened up on a plaintiff’s ability to bring Title VII claims.

First, the Tenth Circuit affirmed summary judgment on the plaintiff’s retaliation claim because she had not alleged it in her EEOC Charge of Discrimination. In her EEOC Charge, she’d alleged retaliation after she was demoted, but when she sued, she added a claim for retaliation based on events before her demotion. Because her EEOC Charge did not allege the latter, the Tenth Circuit held she had failed to exhaust Title VII’s administrative requirements.

Second, the Tenth Circuit affirmed exclusion of her offered expert “who, based on her own experience (not experience specific to the employer), would have testified about gender stereotypes in law enforcement.” The Tenth Circuit agreed with the trial court that no expert testimony is appropriate on such a topic “because gender stereotypes are within the jur(y)’s common knowledge and experience.”

Third, the Tenth Circuit then ruled for the plaintiff, reversing summary judgment, holding a jury trial was warranted on her claim of a hostile work environment based on her sex. The Tenth Circuit held that persistent “rumors … that she engaged in sexual relationships with colleagues and supervisors,” allegations by coworkers that she’d engaged in “flirting with non-colleagues” while on duty, were sufficient to warrant trial, especially where she’d once been ordered “to answer her radio when she was ‘douching,'” which was of course a clearly derogatory (alleged) comment on the basis of her gender. In addition she’d offered circumstantial evidence suggesting her colleagues excluded her because of her gender, where for example one coworker had bought everyone a breakfast burrito but her.

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