Under the POWR Act, Colorado Workplace Harassment Law Departs from Federal Standards

In the next two months, significant changes are coming to Colorado’s Anti-Discrimination Act, otherwise known as CADA. The Protecting Opportunities and Workers’ Rights (POWR) Act creates a new, lower standard for workplace harassment, in addition to limiting the enforceability of nondisclosure agreements and creating new recordkeeping obligations for employers. The POWR Act was signed by Gov. Polis on June 6, 2023, and will take effect Aug. 6, 2023.

New Standards for Workplace Harassment

Workplace harassment based on an individual’s membership in a protected class is unlawful discrimination under both state and federal law, but only certain conduct met the requisite level of severity to be actionable. Courts previously analyzed workplace harassment claims brought under CADA using the standards applicable to Title VII cases[1] but will now analyze such claims using the POWR Act’s statutory framework. The POWR Act redefines workplace harassment, codifies the factors courts use to decide what conduct constitutes harassment, and narrows the affirmative defense available to employers.

The new standards, described in detail below, lower the threshold for viable workplace harassment claims while making it more difficult for employers to prove an affirmative defense to such alleged harassment.

Colorado Workplace Harassment Law Pre- and Post-POWR Act
  Pre-POWR Act Post-POWR Act
Definition of workplace harassment: Workplace harassment was defined as the creation of a hostile work environment based on an individual’s membership in a protected class. The POWR Act removes the hostile work environment requirement, instead defining workplace harassment as “engagement in any unwelcome physical or verbal conduct or any written, pictorial, or visual communication” based on the individual’s membership (or perceived membership) in a protected class. Conduct is only actionable under the Act if it is both offensive to the individual alleging harassment and objectively offensive to a reasonable person who is a member of the same protected class.
Standard used by courts to decide whether workplace harassment is unlawful: Under the “severe or pervasive” standard, harassing conduct is unlawful when the workplace is permeated with conduct sufficiently severe or pervasive to alter the conditions of employment and create an abusive environment.[2] While the POWR Act removes the “severe or pervasive” standard in favor of a lower “unwelcome harassment” standard, conduct only constitutes unlawful harassment if submission to the conduct is a term of employment or is used as a basis for employment decisions, the conduct unreasonably interferes with the individual’s performance, or the conduct creates an intimidating, hostile, or offensive working environment. The Act specifically excludes petty slights, minor annoyances, and lack of good manners unless, under the totality of the circumstances, they meet the standard described above.
Factors courts consider in deciding whether, under the totality of the circumstances, conduct meets the standard for workplace harassment: Courts consider the frequency and severity of the conduct, whether the conduct is physically threatening or humiliating, whether the conduct unreasonably interferes with the employee’s performance, and the social context in which the conduct occurs.[3] The Act codifies the factors courts can consider, adding to the list the number of individuals engaged in the conduct, the location of the conduct, power differentials, and the use of stereotypes and slurs. The Act also clarifies that a single incident may rise to the level of harassment, and conduct that was at one time welcome may become unwelcome.
Affirmative defenses available to employers: An employer could assert an affirmative defense by proving it exercised reasonable care to prevent and correct harassment and the employee alleging harassment unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer or to otherwise avoid the harm.[4]     The Act preserves the essence of the employer’s affirmative defense, but adds more specificity, requiring an employer to show it set up a program designed to prevent harassment, deter future harassers, and protect employees from harassment. As a part of the program, the employer must take prompt, reasonable action to both investigate claims and take remedial action and the employer must communicate the existence of the program to supervisory and nonsupervisory employees. Finally, to establish the affirmative defense, the employer must prove the employee has unreasonably failed to take advantage of the program.
Classes protected under CADA’s employment provisions: Disability, race, creed, color, sex, sexual orientation, gender identity, gender expression, religion, age, national origin, and ancestry. The Act adds marital status to the list of protected classes.

Additionally, the Act requires the Colorado Civil Rights Division, the agency charged with enforcing CADA, to add harassment as a basis for discrimination on its intake forms.

Limitations on Nondisclosure Agreements

The POWR Act also adds a new section to CADA voiding confidentiality provisions and nondisclosure agreements entered into between employers and employees on or after the Act’s effective date, Aug. 6, 2023. Specifically, the Act classifies any employment-related nondisclosure agreement or confidentiality provision as an unfair employment practice unless the agreement:

  • Applies equally to both the employer and employee;
  • Expressly states that it does not prohibit the individual from disclosing the underlying facts of any alleged discriminatory or unfair employment practice, including the existence and terms of a settlement agreement, (1) to the individual’s immediate family members; religious advisor; medical or mental health provider; mental or behavioral health therapeutic support group; legal counsel; financial advisor; tax preparer; or any local, state, or federal government agency, or (2) in response to a legal process;
  • Expressly states that disclosure of the underlying facts of any alleged discriminatory or unfair employment practice does not constitute disparagement;
  • Includes a condition that if the employer has disparaged the individual in violation of a non-disparagement provision, the employer may not try to enforce the non-disparagement or nondisclosure provisions of the agreement against the employee;
  • Expressly states that any liquidated damages provision included in the agreement may not constitute a penalty or punishment for breach, meaning that any liquidated damages provision must be reasonable and proportionate considering the expected actual economic loss for a breach; and
  • Includes an addendum, signed by all parties, attesting to the agreement’s compliance with the Act.

The Act provides for significant penalties if employers’ nondisclosure agreements deviate from these requirements. Under the Act, employees presented with agreements in violation of the Act can bring an action against the employer and recover actual damages, attorney’s fees, and a penalty of $5,000 per violation. A court can reduce the penalty if the employer can show a good faith belief that their agreements were satisfactory, but a court can also award punitive damages in a workplace discrimination suit if the employee can show the employer entered into a nondisclosure agreement that covered the discriminatory conduct.

Requirements for Employer Recordkeeping late

The POWR Act also increases employers’ obligations to maintain personnel records and records of discrimination complaints. Under a new section of CADA, employers must preserve personnel and employment records for a period of five years from the latest of the date the employer created or received the employment record, the date of the personnel action the record relates to, or the final disposition of a charge of discrimination. The Act defines personnel and employment records as:

  • Requests for accommodation;
  • Written and oral employee complaints of discrimination, harassment, or unfair employment practices;
  • Submitted job applications;
  • Hiring, promotion, demotion, transfer, layoff, and termination records;
  • Records relating to rates of pay or other terms of compensation;
  • Records relating to selection for training or apprenticeship; and
  • Records of training provided to employees.

In addition, the employer must keep a repository of all written and oral complaints of discriminatory or unfair employment practices, which must be preserved for five years from the latest of the date the employer created or received the complaint, the date of the personnel action the complaint relates to, or the final disposition of a charge of discrimination. The recorded complaints must include:

  • The date of the complaint;
  • The identity of the complaining party if the complaint was not made anonymously;
  • The identity of the alleged perpetrator; and
  • The substance of the complaint.

While the Act does not implement a penalty for violating the recordkeeping requirements, such records will likely become the subject of discovery requests in future employment litigation.

If you have questions or require assistance in complying with the Act, the BakerHostetler Labor and Employment Practice Group is here to help.

[1] Clayton v. Dreamstyle Remodeling of Colorado, LLC, 20-CV-02096-KLM, 2022 WL 910957 at *18 (D. Colo. Mar. 28, 2022).

[2] Id. at *10.

[3] Id.

[4] Id. at *13.

Dissecting the Supreme Court’s Decision Concerning Affirmative Action and Any Implications It May Have for Private Employers

*Thank you to Olivia Williams, Matt Berger, Delores Chichi, Mitch Robinson and Jennifer DeVlugt for their contribution to this Alert.

Key Takeaways

  • DE&I efforts across all institutions, including private employers, remain beneficial, positive and welcome efforts provided that such efforts are inclusive and do not rely on protected categories in any decision-making process.
  • With future legal attacks on DE&I efforts likely, private employers should take inventory of all of their current programs and policies and audit them for risk.

In a 6-3 decision, the U.S. Supreme Court held in Students for Fair Admissions, Inc. v. President and Fellows of Harvard Coll., No. 20-1199, 600 U.S. – (U.S. June 29, 2023) (available here) that affirmative action programs at educational institutions fail to satisfy the narrow restrictions of the Fourteenth Amendment’s Equal Protection Clause.

While this ruling only immediately impacts educational institutions, the decision will almost certainly have an effect on employers’ diversity, equity and inclusion (DE&I) efforts. Understanding the decision as it applies to educational institutions is critical to understanding its potential implications on private employers, so let’s start there.

Read full alert.

A Changing Atmosphere for Navigating COVID-19 in the Workplace

Starting on June 1, Florida employers are prohibited from discriminating against an individual based on vaccination status or refusal to take a COVID-19 test or wear a face mask. The stated goal of SB 252, which amends Florida Statute § 381.00316, among others, is to prevent deprivation of employment opportunities and discrimination based on an individual’s healthcare choices. This law creates protections beyond the reasonable accommodations for religious and medical reasons already provided by federal and state law.

What changed?

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New York Releases Latest Model Anti-Sexual Harassment Policy and Training

On April 11, 2023, the New York State Department of Labor, in collaboration with the New York State Division of Human Rights, released an updated model anti-sexual harassment policy and an updated model training. Among other things, the new model policy adds further context to the purpose of the law, considerations individuals should have when approaching harassment claims and investigations (e.g., considering the impact of alleged harassment on the complainant), and more details regarding the complaint process.

Specifically, the most notable details include:

  • Making clear that other forms of discrimination/harassment (such as race, creed, color, etc.) are also prohibited under the law.
  • Discussing the intersectionality of each of the various protected classes.
  • Clarifying that discipline for violations of the anti-harassment policy will vary depending on the severity of the violation.
  • Clarifying the standard that must be met for behavior to be considered harassment under the law, including a discussion of petty slights and trivial inconveniences, that the alleged harassment will be viewed as such by a reasonable person, and that intent does not impact whether conduct is harassing.
  • Addressing remote workers and how harassment may manifest remotely.
  • Expounding on definitions related to gender discrimination and harassment (i.e., cisgender, transgender and nonbinary) and providing examples of harassment related to gender.
  • Providing specific examples related to retaliation.
  • Adding a description of bystander intervention and how employees can use it to disrupt harassment.
  • Including the Anti-Harassment Hotline in the Legal Protections and External Remedies section.

Although the core statutory requirements have not changed, employers are required to “prohibit sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights,” and this new model policy is such guidance. Therefore, employers should review their current policies to ensure that they are consistent with the newly issued guidance. Likewise, employers should review their training to address these changes. BakerHostetler’s New York Employment team is ready to assist you with this.

Ten Things That Should Be in Your Staffing Agency Agreements But Probably Aren’t

Retaining temporary labor can be convenient for your business, but the retention introduces new legal risks. Under a joint employment theory, your company can be 100% legally liable for errors made by a staffing agency. You could be sued by temps in a class action. Simple indemnity clauses are not enough. For more on how to approach this, click here for Ten Things That Should Be in Your Staffing Agency Agreements But Probably Aren’t.

Back to the Future: USCIS Resumes Expedited Processing of H-4 and L-2 Applications When Filed Concurrently with an H-1B or L-1 Petition

Back to the Future: USCIS Resumes Expedited Processing of H-4 and L-2 Applications When Filed Concurrently with an H-1B or L-1 Petition

In a settlement, United States Citizenship and Immigration Services (USCIS) has agreed to return to processing dependent H-4 and L-2 applications at the same time as the H-1B or L-1 petition when filed concurrently. This settlement has returned USCIS to its pre-2019 policy, which changed due to the implementation of a biometrics requirement for dependent applications.

Before March 2019, USCIS routinely processed dependent applications, including H-4 and L-2 employment authorization documents, either at the same time or within a few days of the adjudication of the petition for the primary beneficiary (that is, the H-1B or L-1 visa holder). In March 2019, USCIS began requiring the taking of biometrics for dependent applicants. The addition of a biometrics requirement resulted in separate adjudications of the petitions for primary beneficiaries and their family members, creating gaps of months between the adjudication of the primary petition and the dependent applications. Although the biometrics requirement was suspended in March 2020 due to COVID-19, USCIS has continued to adjudicate dependent applications much more slowly than the corresponding H-1B or L-1 petitions. This gap in adjudication has been especially difficult for spouses who are relying on their dependent status to work in the United States and have faced gaps in employment authorization due to this policy change.

The restarting of bundling dependent applications with the primary petitions will likely result in fewer gaps in employment authorization for spouses and ease the fears of many family members of H-1B and L-1 visa holders. This change should also be particularly beneficial to spouses of L-1 visa holders who, since January 2022, have been authorized to work incident to their status. One of the primary methods of verifying this employment authorization has been an I-94 record with the L-2S designation, which will now become much quicker to attain due to this settlement.

However, this settlement only applies to applications and petitions filed concurrently. If a dependent extension application is filed separately from the primary beneficiary’s application, the dependent application will not receive the expedited adjudication offered by this settlement, which is consistent with USCIS’ policy pre-March 2019. Therefore, it is more important than ever to file dependent applications with the primary beneficiary’s I-129 petition to ensure that dependent applications are adjudicated in an expedited manner.

Giving Birth to Federalized Pregnancy Accommodation Standards: Pregnant Workers Fairness Act and Providing Urgent Maternal Protections for Nursing Mothers Act

Modeled after the Americans with Disabilities Act (ADA) and enforced by the Equal Employment Opportunities Commission (EEOC), the Pregnant Workers Fairness Act (PWFA) was passed with bipartisan congressional support as a component of the 2023 omnibus spending bill and signed by President Joe Biden on Dec. 29, 2022. The PWFA expands and federalizes pregnant employees’ protections currently found in the Pregnancy Discrimination Act (PDA), which was a prior amendment to Title VII. The PWFA will take effect on June 27, 2023. Additionally, the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) was also signed into law on Dec. 29, 2022, and amends the Fair Labor Standards Act (FLSA). The PUMP Act requires employers to provide employees, including exempt employees, with reasonable break time to express breast milk. The PUMP Act also makes clear that such breaks for nonexempt employees should be paid unless the employee is completely relieved of their duties for the entirety of the break. While the PUMP Act has taken immediate effect, enforcement provisions will take effect on April 28, 2023.

PWFA: What changes?  

Under the prior standard imposed by the PDA and interpreted by the Supreme Court in Young v. United Parcel Serv., Inc., accommodations for pregnant employees were available only for medical conditions related to pregnancy. When claiming failure to accommodate, it was the plaintiff’s burden to show that defendant accommodated others who were “similarly situated in their ability or inability to work.” In short, pregnancy, in and of itself, was not enough to trigger an accommodation under the PDA. To top it off, the standard set by Young was somewhat convoluted and had various interpretations throughout the courts.

The PWFA bridges the gap by codifying pregnant workers’ protections that were not explicitly included in the ADA or the PDA. The PWFA requires employers with 15 or more employees to provide reasonable accommodations for a known limitation related to pregnancy, childbirth or related medical conditions of qualified employees. Qualified employees include an employee or job applicant who can perform the essential functions of the position with or without reasonable accommodation. In requirements similar to those of the ADA, employers must engage in the interactive process when arriving at a reasonable accommodation. Employers cannot require an employee to take paid or unpaid leave if another reasonable accommodation can be provided instead. Examples of reasonable accommodations may include permitting an individual to sit or stand more or less frequently than usual; reducing or revising schedules; allowing more frequent breaks; moving a work station closer to a restroom or a water source; providing assistance with physically demanding tasks; or arranging for light duty or a temporary transfer to a different position.

While employers are not required to provide an accommodation when undue hardship on the operation of the business will result, employers cannot deny employment opportunities to qualified employees or take adverse action against an employee where the denial or action is based on the need or request to make reasonable accommodations related to pregnancy, childbirth or related medical conditions. Remedies available under Title VII are also applicable to the PWFA, which includes a private right of action (after exhausting administrative remedies) that may result in an award of back pay, compensatory damages and attorneys’ fees.

For employers located in jurisdictions that are aligned with federal law, the PWFA is a change that explicitly provides for reasonable accommodations for qualified employees. Many states and localities over the years, however, have already enacted enhanced protections for pregnant employees, and this may not be much of a change, or a change at all, for employers in places such as New York City.       

PUMP Act: What changes?

The PUMP Act is an expansion of the FLSA and requires employers to provide reasonable breaks to express breast milk to all employees, including salaried employees, and not just nonexempt workers, as was the case under the FLSA. The law also makes clear that such breaks should be considered “hours worked” by an employee and thus appropriately compensated unless the employee is completely relieved of their duties during the entirety of the break. Employers must provide a private place other than a bathroom for covered employees to express breast milk, and the space must be free from intrusion by the public and co-workers. These breaks should be allowed from the date the need arises and for up to one year after the child’s birth. Employers with fewer than 50 employees can seek an exception from compliance if doing so would impose undue hardship on the business. Similar to the PWFA, the PUMP Act allows a private right of action after the employee has exhausted their administrative remedies. For employers located in jurisdictions that allow for similar or greater protections for nursing employees, the PUMP Act may not have as much impact.

What now?

While the EEOC has been allotted two years to issue PWFA-specific regulations, including examples of reasonable accommodations, employers should act now, before the law takes effect. Employers should review and revise their policies to ensure that pregnancy, childbirth and related medical conditions can be considered limitations that employers must reasonably accommodate. Further, employers should train managers and human resources professionals to be aware of and sensitive to the changes imposed by the PWFA, especially the need to and when and how to engage in the interactive process with qualified employees.

Enforcement provisions provided under the PUMP Act will not take effect until April 28, 2023, but the law has immediate effect. Therefore, employers that have not already done so should ensure that an appropriate non-bathroom space for employees to express milk is accessible. Further, employers should ensure that nonexempt nursing employees are paid if they express breast milk during their paid breaks or if they are not completely relieved of their duties during the break period while expressing breast milk. Exempt employees should be paid their full salary regardless of whether they take breaks to express breast milk.

Should you have any questions, the BakerHostetler Labor and Employment practice team is here to help.

Just in Time for the Dreaded Recession – Mandated Severance Payments in New Jersey for Mass Layoffs and Closings

close up box of stuff and document paper and show need a job after coronavirus

I Remember Something About This.

Remember back before COVID-19 arrived in the United States – can you remember that far back? Way back then, New Jersey passed amendments to the New Jersey WARN Act that would require employers to provide extended notice and severance to any employee displaced during a mass layoff or closing. Once COVID-19 hit and devastated the finances of so many employers, New Jersey suspended the enactment of the amendments until the State of Emergency related to COVID-19 was lifted in all respects. Last week, however, the New Jersey Legislature voted to enact the amendments while pieces of the State of Emergency remain in place, and on January 10, 2023, the governor signed the bill allowing those changes to go into effect.

What Is WARN, Anyway?

As many may be aware after having had to quickly get up to speed during the COVID-19 furloughs and subsequent layoffs, WARN is the Worker Adjustment and Retraining Notification Act, which is a federal law that requires certain notices be sent at least 60 days prior to a mass layoff or closing, if the employer is covered by WARN and enough employees are affected by employment loss. The notices provided must go the employee; a union, if any; and various governmental contacts. There are specific requirements that the notice must meet in order to satisfy the law. Many states, including New Jersey, have what are called mini-WARN laws, which have additional or more stringent requirements than the federal WARN law.

What Does This Amendment Change in New Jersey?

The amendments will now require that employers subject to the law give at least 90 days’ notice before any mass layoff, transfer of operations or plant closing. The amendment does not change the number of employees an employer must have in order to be subject to NJWARN, which remains at least 100 employees, but now employers must count all employees, not just full-time employees. The amendments also change the minimum number of employees who need to be affected by employment loss in order to trigger the law in two ways:

  1. The minimum number of employees who need to be affected by the employment loss is only 50 – regardless of whether or not they are one-third of the workforce.
  2. There is no longer a distinction between full-time and part-time employees, so all employees who are affected by an employment loss are now counted to determine if 50 or more are affected.

Additionally, and arguably the biggest change, is the requirement to pay severance to employees who are affected by the employment loss. The severance should be one week per each full year of employment they have worked for the employer, or severance required by a collective bargaining agreement, whichever is greater. Additional severance is required if an employer fails to provide the requisite 90 days’ notice.

Wow. Is This in Effect Right Away?

The law goes into effect 90 days from passage, which is April 10.

What Should Employers Be Doing Now?

If employers know that they are headed for a layoff/plant closing, or may be, they may want to work as quickly as possible to effectuate those layoffs or plant closings prior to April 10 to avoid the additional costs associated with an extra 30 days’ paid notice and the severance required under the new amendments. Remember, however, that certain employers are still subject to the current NJWARN, which requires 60 days’ notice for certain qualifying events.

If you have questions related to planning a future layoff, relocation or closing; whether you are an employer subject to WARN; or how to draft compliant notices, please reach out to our team for additional information.

New Illinois Employment Laws for 2023

2023 calendar on desk

As the new year rolls in, Illinois employers should take note of new laws that went into effect on January 1, 2023.

First, Illinois has expanded and renamed the former Child Bereavement Leave Act, which is now called the Family Bereavement Leave Act. While the old law required employers to provide unpaid leave for the death of an employee’s child, the new law mandates up to two weeks of unpaid leave due to the death of the employee’s children, stepchildren, spouse, domestic partner, sibling, parents, mother-in-law, father-in-law, grandchildren, grandparents, or stepparents. Children include biological, adopted, or foster children; stepchildren; legal wards; and children of a person standing in loco parentis. Leave under the new law is also available for a miscarriage, unsuccessful round of intrauterine insemination or of an assisted reproductive technology procedure, failed adoption, failed surrogacy agreement, diagnosis that negatively impacts pregnancy or fertility, or stillbirth. Employers should review their current leave policies to ensure compliance with the new law.

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