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Amendments to the Colorado Anti-Discrimination Act

By News, Updates

The last few weeks have seen a torrent of new employment laws pass in the Colorado legislature.  Today we will discuss the most recent changes to the Colorado Anti-Discrimination Act (CADA) today, and will be posting separately on changes to Colorado’s non-compete statute and Wage Claim Act very soon.

House Bill 22-1367 passed Monday night and makes multiple amendments to the Colorado Anti-Discrimination Act (CADA).  These changes include:

  • Expanding the definition of “employee” to include domestic workers;
  • Extending the amount of time an employee has to file a complaint of discrimination under CADA from 180 days to 300 days after the unfair employment practice took place; and
  • Expands remedies in age discrimination cases to match those available under all other protected classes.

These changes are notable and represent a significant expansion of rights and remedies for employees.

Domestic Employee Discrimination

First, there are an estimated 2.2 million domestic workers in the United States, and tens of thousands of domestic workers employed in Colorado.  Domestic workers are individuals who are employed by a household or individual to perform duties in private residences and therefore include nannies, housekeepers, home aides, and more.  CADA has historically exempted domestic workers from CADA’s definition of “employee” until now.

An expansion of CADA to include domestic workers will require potential employers to not discriminate, refuse to hire or promote, or fire or demote domestic employees because of their disability, race, creed, color, sex, sexual orientation, gender identity, gender expression, religion, age, national origin, family status, or ancestry.

Domestic employees may now file charges of discrimination with the Colorado Civil Rights Division (CCRD), and employers – that is, households – will be required to respond to the CCRD’s requests for information and interviews.

300 Day Filing Deadline

Under the previous version of CADA, employees had a maximum of 6 months, or 180 days, to file a charge of discrimination with the Colorado Civil Rights Division (CCRD) after a CADA violation or waive their claim.  Although 6 months may seem like a long period of time, the CCRD’s intake process for self-represented employees does not toll the clock on the 180-day deadline, and many employees do not become aware of the filing requirement until close to the deadline.

HB 1367’s amendment will extend the deadline to file complaints under CADA to 300 days, thereby matching the deadline to file complaints under federal law with the Equal Employment Opportunity Commission (EEOC).  This extension of time will allow more employees – and particularly employees of small businesses who may not have claims under federal laws – to file complaints, seek counsel, and initiate a CCRD investigation.

Expanded Remedies for Age Discrimination

Both state and federal laws have historically and ironically discriminated against plaintiffs bringing age discrimination claims by limiting the remedies under age claims.  Up until now, plaintiffs asserting age discrimination claims were barred from seeking punitive or compensatory damages under either CADA or the Age Discrimination in Employment Act (ADEA).

HB 1367 finally brings age claims in line with all other protected classes and will allow age discrimination plaintiffs to seek punitive and compensatory damages once signed, meaning that age discrimination plaintiffs will finally be able to receive compensation for emotional distress, medical treatment, inconvenience, and impairment of the quality of life.  These damages are often a substantial part of the damage sustained by plaintiffs in discrimination and retaliation cases and represent a significant increase in potential liability for employers.

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If you have questions or need help 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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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. 

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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.

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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