CDLE issues form Colorado employers may use as a separation notice

As previously posted on this blog, Colorado passed a new statutory requirement to inform employees of various information, including unemployment rights, at separation. Unfortunately, that new law gave no guidance on what such a notice might actually look like and only vaguely suggested content bullet points. Now, the CDLE has issued a draft form that Colorado employers may use.

Should you notify your insurance carrier or not?

The New York Times ran an interesting article about a potentially devastating mistake by, of all places, Harvard: Failing to notify one of its insurance companies may cost the university $15-million. To be sure it depends on your insurance policy, what your deadline will be. Different policies set different deadlines. Some set a certain number of days following an “occurrence,” some after a “demand.” Some don’t specify days but use language like “within a reasonable time” or “promptly.” In the employment context, one could see a policy, just as an example, that sets a 30-day deadline from when a “claim” is “made.” The policy may then define those terms, and, as just one example, it may be that the policy language states that a simple “written demand” suffices to trigger the 30-day notice deadline. Whatever the policy language, insurance policies often do not allow insureds to, then, just “wait and see” if a matter turns into something serious; insurance companies often argue that they insert these deadlines because, they contend, part of their bargain is that they (the insurance company) want to be involved early in the process, so that they can help, they believe, to contain costs. On the other hand, insureds are also correct in many cases to argue that extenuating circumstances apply and that such deadlines should not operate as “get out free cards” for insurers. In short, insureds (whether companies or individuals, in an employment context or in any context) should familiarize themselves with the policy language that they’ve paid for, then be sure to strive for compliance, in order to avoid just this kind of lawsuit.

According to the New York Times, Harvard now finds itself in a lawsuit with its own insurer over whether it missed its deadline.

But Harvard did not alert Zurich, its excess insurer, which was meant to cover the next $15 million, until long after the policy’s deadline had passed.


“Somebody seriously messed up,” said Tom Baker, a law professor at the University of Pennsylvania. “I teach about this stuff. One of the things you teach people about claims-made policies is that you’ve got to provide notice early and often.”

Whether Harvard will lose $15-million in insurance coverage is for the courts to decide, but the issue itself provides a good object lesson for insureds. Interested readers will find links in the New York Times article to briefing by both Harvard and its insurance company.

EEOC releases new poster, no deadline yet set

The EEOC has released a new version of its prior “EEO is the Law” poster, now called a “Know Your Rights” poster. The new poster is available here. The EEOC encourages employers to substitute it for the current poster as soon as possible. The EEOC has not yet set a deadline for when it must be substituted. For additional information about the changes in the new poster, the EEOC summarized its intended changes in its press release regarding the new poster.

DOL issues proposed joint contractor rule

The DOL has issued yet another proposed rule regarding independent contractors. Under recent Presidents the DOL has ping-ponged back and forth issuing stricter or looser rules purporting to define the test for determining if individuals are working as employees or independent contractors (for the purposes of a number of laws under the DOL’s jurisdiction). In May 2021, the DOL under the Biden Administration withdrew its prior Trump-era rule and is now proposing to replace it with a stricter test that will involve a multi-factor test, which begins with the Trump-era DOL rule’s 5 factors:

  1. The “opportunity for profit or loss depending on managerial skill” of the worker;
  2. The extent of “investments” by the worker versus the company;
  3. The relative “permanence” of the relationship between the worker and the company;
  4. The extent to which the work is an “integral part of the” company’s business; and,
  5. The degree of “skill and initiative” involved for the worker.

The DOL has called its new proposed test, the “Economic Realities” test. It is designed to be stricter than prior tests, in order to catch what DOL believes is a large number of currently misclassified workers, but the DOL advises it does not have numbers to suggest how many such relationships it would invalidate. The DOL requests comments prior to November 28, 2022.

CDLE proposes four sets of new rules

On September 29, 2022, the CDLE issued four sets of proposed Rules and accompanying explanatory Statements.

  1. Proposed revisions to 7 CCR 1103-14, which are the rules implementing the CDLE’s PAY CALC Order, which sets the minimum wage rates in Colorado. The new rules would increase
    • the minimum hourly rate to $13.65 from $12.56,
    • the minimum hourly rate with tip credit to $10.63 from $9.54,
    • the minimum guaranteed weekly salary for executive, administrative and professional exempt employees to $961.54 from $865.38, and
    • the minimum guaranteed annual salary for highly compensated exempt employees to $112,500 from $102,250.
  2. Proposed revisions to 7 CCR 1103-11 to implement this year’s new law SB 22-097, which expanded whistleblower protections to prohibit retaliation for the expression of any “reasonable concerns about workplace violations of governmental health or safety rules, or otherwise significant workplace health or safety threats,” without a requirement any longer to prove the concerns were “related to a public health emergency.”
  3. Proposed revisions to 7 CCR 1103-7, which implements increases including under this year’s new law SB 22-161 to penalties, attorney fees, claim and appeal processes, under the laws overseen by the CDLE in the Colorado Wage Act (CWA).
  4. Proposed revisions to 7 CCR 1103-6, which vest authority in the CDLE to issue, and oversee enforcement of, prevailing wage determinations on certain public projects under the Colorado Prevailing Wage Act (PWA) and the Keep Jobs in Colorado Act (KJICA).

The CDLE invites comments and has schedule rulemaking deadlines, including public hearings, on its website.

NLRB reimposes requirement to keep dues checkoff clause in effect following expiration of CBA

The Biden Board has reversed a ruling by President Trump’s NLRB, returning to the Obama-era ruling, which had in turn reversed longstanding precedent regarding whether dues need to continue to be paid to a union even after the CBA requiring dues payment (a “dues checkoff” clause) had expired. Historically, the ruling had been, since at least the NLRB’s 1962 ruling in Bethlehem Steel that dues checkoff clauses expired with the CBA and, therefore, a company could stop withholding and paying them to a union. President Obama’s majority-appointed NLRB reversed that; then President Trump’s reversed it back, and now the current Board has returned to the Obama-era ruling, holding that dues must continue to be paid, with the Democrat-appointee Board members saying: “Payments via a dues-checkoff arrangement are similar to these other voluntary checkoff arrangements, and dues-checkoff arrangements should survive contract expiration just as other voluntary checkoff arrangements do.” The current decision is Valley Hospital Medical Center.