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Daphne Shih Gebauer

New Criminal Penalties under Colorado’s Non-Compete Statute

By Updates

On March 1, 2022, Colorado amended its non-compete statute to impose criminal liability on employers who knowingly enforce void non-compete agreements against their employees. Colorado Senate Bill 21-271 raises the stakes for employers who seek to use non-competition agreements to restrict former employees from engaging in competing conduct; such violations may now be prosecuted as class 2 misdemeanors, which are punishable by up to 120 days in jail, a fine of up to $750, or both. 

This amendment to C.R.S. § 8-2-113 underscores Colorado’s continuing skepticism  non-competition agreements. As before, Colorado’s non-compete statute explicitly renders non-competition agreements void except where the following narrow exceptions apply:  

  • A contract for the purchase and sale of a business or assets of a business; 
  • A contract for the protection of trade secrets; 
  • A contract for the recovery of the expense of educating and training an employee who has worked from an employer for less than two years; or 
  • The employee is an executive, officer, or management personnel, or their professional staff.  

If one of these exceptions is met, the non-compete clause must also be reasonable in temporal and geographic scope to be enforceable.  

Confidentiality and non-disclosure agreements are generally not limited in the same way as non-competition agreements, but can be treated as non-competition agreements if they seek to restrict a former employee’s ability to seek work after separation.

In short, non-compete clauses are highly disfavored in Colorado and must be narrowly tailored to one of the statutory exceptions to be valid. If you are concerned about protecting your company’s intellectual property or have signed an employment agreement containing a non-competition clause, please reach out to us at 719-212-2890 or schedule an appointment here to discuss potential next steps.  We look forward to working with you. 

Vacation, PTO, and Wages: A CDLE Update

By Blog

The Colorado Department of Labor and Employment has issued Interpretive Notice & Formal Opinion #14 outlining that Colorado employers who offer paid vacation must pay their employees earned vacation upon separation, regardless of the reason for separation.  This INFO #14 follows the Colorado Supreme Court’s 2021 decision in Nieto v. Clark’s Market, which confirmed that earned vacation pay cannot be forfeited at the end of employment under the Colorado Wage Act even by agreement.  

Under the Colorado Wage Act, “vacation pay” is considered a form of wages. As wages cannot be forfeited or waived, vacation pay likewise cannot be forfeited or waived.  INFO #14 makes clear that paid leave that can be used for any purpose will be considered “vacation pay”  regardless of what the pay is called; “personal days,” “paid time off,” or “annual leave” can all be considered “vacation pay” and therefore wages under the Colorado Wage Act.  (Leave taken for a specific purpose, however, such as parental leave or bereavement leave, are not considered vacation pay.)  As wages, employees are also entitled to have their accrued vacation days paid out the day after separation with their final paycheck.  

INFO #14 highlights the importance for employers to clearly define their paid leave policies. Employers are, for example, entitled to define the rate at which an employee may accrue paid leave, how much paid leave may be accrued in a time period, and how much paid leave may be used within a specific time period. An employer, however, cannot limit how much already-accrued vacation pay carries over to the next year (that is, apply a use-it-or-lose-it paid leave policy).  Employers who use PTO in lieu of paid sick leave under the Healthy Families and Workplaces Act (HFWA) should likewise be careful not to apply PTO limits that would run afoul of HFWA’s the minimum sick leave requirements.  

If you need assistance reviewing your existing vacation or PTO policy, please reach out to us at 719-212-2890 or schedule an appointment here. We look forward to discussing your options with you. 

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Paid Sick Leave for All Colorado Employers Coming in 2022

By Updates

On January 1, 2022, all employers in Colorado will be required to provide paid sick leave to employees under the Colorado Health Families and Workplaces Act (HFWA). Employers with more than 16 employees have been required to comply since January of this year. The CDLE’s guidance on HFWA paid sick leave can be found here under INFO #6A and #6B.  

Although HFWA’s requirements are relatively straightforward, employers should take care to compare their current leave policies with HFWA’s to determine whether their existing leave policies can be considered equivalent to or “more generous” than what HFWA requires. For example, one provision that is often overlooked is that HFWA requires all employees to begin accruing on the first day of work, while many existing policies do not allow new employees to accrue leave until several months have passed. A leave policy that does not allow accrual until several months after hire would therefore fall below the minimum benefits guaranteed by HFWA and would not be compliant.

Remember also that Colorado remains in a public health emergency and that HFWA’s provisions regarding COVID-19 related leave remains in place. These obligations are in addition to paid sick leave and will continue until the state of emergency is lifted.

Please reach out to us at 719-212-2890 or schedule an appointment here if you would like us to help you review your existing leave policies or employee handbook. We look forward to discussing your options with you.

Can they do that? COVID-19 edition

By Blog

President Biden’s announcement last week that federal employees and contractors will be required to “attest” to their vaccination status is raising questions about employer vaccination policies.   I’ll address a few of the most common ones here.*

Can my employer require me to be vaccinated as a condition of employment?

Generally speaking, yes.  Absent a religious belief or a disability requiring accommodation, an employer may require that its employees be vaccinated.  (A lot has been written elsewhere as to whether this is a good idea and the difficulties in enforcing such a policy, and I won’t reiterate those discussions here.) 

Am I eligible for a religious or medical accommodation so that I may be exempted from a vaccination requirement? 

The answer to this question naturally depends on the specific circumstances faced by the employee seeking an accommodation. 

Employers are required to provide a religious accommodation to employees whose sincerely held religious beliefs, practices, or observances conflict with work requirements absent an undue burden on the employer.  In the case of vaccination, an employee would need to demonstrate that a vaccination requirement conflicts with the employee’s religious beliefs, practices, or observances.

Employers are also required to reasonably accommodate employees who seek an accommodation for a disability, but again not if the accommodation would create an undue burden for the employer.  

Under either scenario, the employer and employee must then engage in an interactive process to determine what reasonable accommodations may exist.  It is important to note that an employee is not entitled to the specific accommodation asked for, only a reasonable accommodation that addresses the employee’s restrictions but allows them to continue performing their job duties.  This is an analysis that requires discussion between the employer and employee about the employee’s limitations, possible accommodations, and the requirements of the position.  

For example, an employee who is unable to be vaccinated due to an underlying medical condition may be accommodated in a number of ways depending on the nature of the position.  An employee may be eligible for telework, if the position allows it; or, if the position requires the employee to be on-site, the employee may be accommodated by being required to wear a mask and be subjected to regular testing.  Accommodations will depend greatly on the employee’s restrictions and the nature of the position, which makes this question particularly difficult to answer without greater detail.  

Accommodations require a fact-intensive analysis and dialogue between the employee and employer.  Please reach out to us if you need assistance in this area.  

Can my employer make me disclose my vaccination status?  

Practically speaking, an employer cannot — absent coercive tactics that would likely be illegal for other reasons — make an employee disclose anything the employee does not wish to disclose.  But if the question is whether an employer may require disclosure of vaccination status and take adverse action against an employee if the employee refuses to disclose their status, then:  yes. 

Isn’t my vaccination status covered by HIPAA?

Yes and no.  HIPAA applies to covered entities, namely health care providers and their business associates.  HIPAA does not apply to non-covered entities, including employers, schools, etc.

Moreover, even if HIPAA did apply to employers, there is no private right of action under HIPAA.  In other words, you cannot sue a HIPAA-covered entity for an improper disclosure; you would have to file a complaint with either the covered entity or the Department of Health and Human Services.

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If you have questions or need assistance navigating this area of employment law, please reach out to Tava Employment Law here.  I welcome your suggestions for future topics as well.  

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*As always, subject to the usual disclaimers: 

The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only.  Information on this website may not constitute the most up-to-date legal or other information.  This website contains links to other third-party websites.  Such links are only for the convenience of the reader, user or browser; Tava Employment Law does not recommend or endorse the contents of the third-party sites.

Readers of this website should contact their attorney to obtain advice with respect to any particular legal matter.  No reader, user, or browser of this site should act or refrain from acting on the basis of information on this site without first seeking legal advice from counsel in the relevant jurisdiction.  Only your individual attorney can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation.  Use of, and access to, this website or any of the links or resources contained within the site do not create an attorney-client relationship between the reader, user, or browser and website authors, contributors, contributing law firms, or committee members and their respective employers. 

All liability with respect to actions taken or not taken based on the contents of this site are hereby expressly disclaimed.  The content on this posting is provided “as is;” no representations are made that the content is error-free.

Tava Employment Law Named One of the Best Colorado Springs Employment Law Firms

By News

We’re proud to have been named one of the best employment law firms in Colorado Springs by Expertise.com.  Expertise.com investigates and rates service providers based on availability, qualifications, reputation, experience, and professionalism, and makes local recommendations based on twenty-five variables across five categories.

Tava Employment Law is a boutique law firm focused on employment litigation, advising, and workplace investigations.  We represent and advise Colorado employees and employers on their rights, obligations, and options over the entire course of employment.  Please contact us at (719) 212-2890 if you are in need of employment law assistance.

Equal Pay for Equal Work Act Changes How Colorado Employers Hire, Promote, and Pay Workers

By Updates

Paid sick leave seems to have stolen the thunder from the Colorado Equal Pay For Equal Work Act, but the EPEW Act also came into effect on January 1, 2021 and brings some major changes in how employers hire and compensate employees.

In a nutshell, EPEW prohibits discrimination in pay on the basis of gender.  To this end, Colorado employers are now required to announce all advancement opportunities to all employees, and each job posting must include a predetermined pay range. This law also prohibits seeking or relying upon a prospective employee’s past pay history in determining compensation, and also discriminating against employees who refuse to provide their pay history.

Something to also note is that the EPEW Act now has a defined list of 6 approved reasons for pay disparity (seniority, merit, quantity/quality of production, geographic location, education/training/experience, and job-required travel.)  This is different than the federal Equal Pay Act, which has a much broader catchall provision. The EPEW Act also encourages employers to proactively address equal pay issues through a self-audit, which may later be used as a defense against the law’s liquidated damages provision.

The full text of the EPEW Act can be found here.

Colorado Healthy Families and Workplaces Act

The Healthy Families and Workplaces Act Creates Paid Sick Leave for Colorado Workers

By Updates

The Colorado Healthy Families and Workplaces Act is Colorado’s paid sick leave law, and will begin requiring all employers with 16 or more employees to grant up to 48 hours of paid sick leave to employees beginning January 1, 2021.  Smaller employers will be required to start providing paid sick leave starting in 2022.

Wrongfully denied paid sick leave is treated as unpaid wages under the Colorado Wage Act, therefore can incur significant penalties for employers. If you’re an employer, start reviewing your PTO policies to see if your existing policy satisfies HFWA and make changes as needed. If you’re an employee, be sure you understand how your employer’s PTO policies work starting in 2021.

A point of confusion we’ve seen is that many Colorado employers do not realize that HFWA has a separate, COVID-19 related leave provision that has been effect since July 2020.  Under HFWA, employees are entitled to take up to two weeks for COVID-19 related reasons, ranging from waiting for COVID-19 test results to return, symptoms consistent with COVID-19, and the need to care for family members due to COVID-19 (including children who are remote learning.)  Both employers and employees should note that the two weeks of guaranteed COVID-19 related sick leave is provided in addition to HFWA’s 48 hours of sick leave.

This law has been the subject of a lot of confusion, and we welcome the opportunity to help you navigate these new requirements.

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