Colorado has joined a growing movement of states in passing laws that provide greater protections to employees and job applicants. Among these are the Equal Pay for Equal Work Act and a ban the box law, which limits criminal history inquiries for job applicants. The following is a breakdown of Colorado’s newest employment laws and how their implementation may impact employers and employees alike.

Equal Pay

Effective January 1, 2021, the Equal Pay for Equal Work Act (the “Act”) will expressly prohibit employers from paying employees of different genders different wages for “substantially similar work.” The law also prohibits pay discrimination on the basis of sex in combination with another protected category under Colorado law. Determining whether work is “substantially similar” depends on the nature of the job itself, as well as the skill set and level of responsibility of the employees involved.

Employers are permitted to have pay differentials if the employer can prove differences in compensation are based on one or more of the following factors:

  • A seniority system;
  • A merit system;
  • A system that measures earnings by quantity or quality of production;
  • The geographic location where the work is performed;
  • Education, training, or experience to the extent that they are reasonably related to the work in question; or
  • Travel, if the travel is a regular and necessary condition of the work performed.

Additionally, employers that can demonstrate a good faith effort through proactive measures to comply with the Act may be able to mitigate liability should a claim arise. Similar to “safe harbor” provisions in equal pay laws in Massachusetts and Oregon, such proactive measures should include regular audits of compensation practices. While these measures do not create a complete defense, employers that successfully present evidence of a “thorough and comprehensive pay audit” with the “specific goal of identifying and remedying unlawful pay disparities” may avoid liquidated damages. The key word here is “remedying”; employers that conduct pay audits, but then fail to take steps to correct unlawful pay discrepancies revealed by the audit, will not reap the benefits of the “safe harbor” defense and could instead find themselves without the proverbial port in a storm.

Notably, the Act goes further than most other comparable state wage discrimination laws by mandating notification to employees of employment opportunities. Employers must make reasonable efforts to provide notice of internal opportunities for promotion on the same calendar day the opening occurs. These announcements must disclose the hourly or salary compensation, or at the very least a pay range, as well as a description of benefits and other compensation being offered. Failure to comply with these provisions could result in fines of between $500 and $10,000 per violation.

Salary History

Following the lead of nine other states (and a number of localities), the Act also includes a provision barring employers from asking applicants about their wage or salary history. Specifically, employers may not:

  • Seek the wage rate history of a prospective employee;
  • Rely on a prior wage rate to determine the wages or salary to be offered;
  • Discriminate or retaliate against a prospective employee for failing to disclose his or her wage history; or
  • Discharge or retaliate against an employee for asserting rights protected by the Act on behalf of a prospective employee.

Unlike many other bans on salary history inquiries, the Colorado law contains no exceptions that would allow an applicant to voluntarily disclose salary history information or an employer to confirm an applicant’s prior salary after a conditional job offer is made and where the prospective employee wants to negotiate a higher salary.

Pay Transparency

Another portion of the Act provides that once an employee is hired, an employer may not:

  • Prevent employees from discussing their own compensation information with others; or
  • Require employees to sign a waiver that prohibits their ability to do the same.

Employers that violate this provision may be subject to fines and other legal and/or equitable relief, including reinstatement, promotion, pay increase, payment of lost wage rates, liquidated damages and reasonable attorneys’ fees.

Ban the Box

Colorado has also enacted a ban the box law (HB19-1025) that prohibits employers from inquiring into a job applicant’s criminal history on an application form.

Additionally, employers may not:

  • Advertise that a person with a criminal history may not apply for a position;
  • Place a statement in an employment application that a person with a criminal history may not apply for a position; or
  • Inquire about an applicant’s criminal history on an initial application.

Employers may perform criminal background checks later in the hiring process. There also is no prohibition against an employer obtaining publicly available criminal background reports. Several additional exceptions to the ban on advertisements and application inquiries apply if:

  • Federal, state, or local law or regulation prohibits a person who has a particular criminal history from being employed in a particular job;
  • The employer is participating in a program to encourage employment of people with criminal histories; or
  • The employer is required by law to conduct a criminal history record check for the particular position.

The Colorado Department of Labor and Employment is charged with issuing warnings and orders of compliance for violations and has the authority to issue civil penalties for subsequent violations. Private causes of action are not authorized by the law.

The law goes into effect on September 1, 2019 for businesses with eleven or more employees; for smaller businesses, the law becomes effective on September 1, 2021.

This post was written with assistance from Jenna D. Russell, a 2019 Summer Associate at Epstein Becker Green.

After a long legislative battle, the New York State Gender Expression Non-Discrimination Act (“GENDA” or “Law”), which was signed into law and became effective on January 25, 2019, explicitly added “gender identity or expression” as a protected class under the state’s non-discrimination laws. Now, under a proposed state regulation, the New York State Division of Human Rights (“DHR”) would amend its regulations, codified in NYCRR §466.13, prohibiting discrimination on the basis of gender identity, gender expression, and transgender status to conform with the Law.

The proposed regulation would amend NYCRR 466.13(b) to define “gender identity and expression” as “a person’s actual or perceived gender-related identity, appearance, behavior, expression or other gender-related characteristic regardless of the sex assigned to that person at birth, including but not limited to, the status of being transgender.” The change would match the definition in the Law.  Additionally, the phrase “gender identity or expression” would replace “gender identity” throughout the regulation. A new section, NYCRR 466.13(c), would also be added to clarify that “gender identity or expression” is now explicitly a separate protected class under the Human Rights Law.

Although the regulations may undergo some modifications, NYCRR §§ 466.13(b)(3) and 466.13(d) and (e) remain, making clear that discrimination based on gender identity or expression can be a type of disability discrimination as well as a form of sex discrimination. Under the Human Rights Law, a person meeting the criteria for a medical diagnosis of gender dysphoria is entitled to the disability protections provided by the Human Rights Law, including the right to reasonable accommodations. The DHR’s regulations would clarify that gender dysphoria is a disability under the  Human Rights Law, and reaffirm New Yorkers’ right to obtain employment, education, housing, and use of places of public accommodations without discrimination on the basis of gender identity or expression.

This Employment Law This Week® Monthly Rundown discusses the most important developments for employers in July 2019. Both the video and the extended audio podcast are now available.

This episode includes:

  • State Legislation Heats Up
  • NLRB Overturns Another Long-Standing Precedent
  • SCOTUS October Term 2018 Wraps Up
  • Tip of the Week: How inclusion and trust can increase innovation in the workplace

See below to watch the full episode – click here for story details, the video, and the extended audio podcast.

Stay tuned: Sign-up for email notifications and subscribe to the extended podcast edition on your preferred platform – Apple PodcastsGoogle Play, OvercastSoundcloudSpotifyStitcher.

Our colleagues 

Following is an excerpt:

On July 2, 2019, New Jersey joined Illinois, Nevada, New Mexico, New York City, and Oklahoma in enacting employment protections for authorized users of medical cannabis. New Jersey’s new medical cannabis law (“Law”), which became effective upon signing by Governor Phil Murphy, amends the state’s Compassionate Use Medical Cannabis Act (“CUMCA”),[1] N.J.S.A. 24:61-2, et seq. Among other measures, the Law prohibits employers from taking an adverse employment action against a current or prospective employee based on the individual’s status as a registered qualifying user of medical cannabis. Under the Law, an “adverse employment action” means “refusing to hire or employ an individual, barring or discharging an individual from employment, requiring an individual to retire from employment, or discriminating against an individual in compensation or in any terms, conditions, or privileges of employment.” In addition, the Law requires employers that maintain drug-testing policies to offer applicants and employees the right to respond, in specific ways, to a drug test that comes back positive for cannabis.

Specifically, if an employee or applicant tests positive for cannabis, the Law requires the employer to provide written notice offering the individual the right to provide a “legitimate medical explanation” for the positive test result or to request a retest of the sample. The individual has three days after receiving the notice to (i) provide the explanation, which may include authorization for the use of medical cannabis issued by a health care practitioner, proof of registration with the state’s newly created Cannabis Regulator Commission, or both, or (ii) request a confirmatory retest of the original sample at the individual’s own expense. …

Read the full post here.

In an attempt to protect hotel employees such as housekeepers and room service attendants from violent acts by hotel guests, including sexual assault and harassment, New Jersey recently passed a novel law requiring New Jersey hotels with more than 100 guest rooms to arm hotel employees assigned to work in a guest room alone with a free panic button device. Under the law, hotel employees who activate the button on the reasonable belief there is an ongoing crime, immediate threat of assault or harassment, or other emergency, can immediately leave the guest’s room and await assistance without facing an adverse employment action.

This law also requires covered hotel employers to adhere to the following protocol when a hotel employee utilizes his/her panic button:

  1. Record all accusations by hotel employees regarding an act of violence or other inappropriate conduct by a guest.
  2. Reassign hotel employees who utilize a panic button to a work area away from the guest in question.
  3. Maintain a list of all guests accused of violence/inappropriate conduct for a period of five years from the date of the incident.
  4. Alert all other hotel employees who are assigned to duties of the room in which an alleged incident occurred of the guest in question and provide them the right to service that room with a partner or opt out of servicing that room for the duration of the guest’s stay.
  5. Conduct an internal investigation to determine as much identifying information about an accused guest as reasonably possible and at the conclusion of the investigation, if the victim provides a certified statement of an incident of assault or sexual harassment or if the hotel independently confirms the victim’s description of the incident, ban the guest from the hotel for at least three years. The three-year ban also applies to guests who are convicted of a crime in connection with the incident in question.
  6. Report all incidents of alleged criminal or inappropriate conduct by a guest to law enforcement.

In addition, the law requires covered hotel employers to develop a program that educates its employees about the use of panic button devices and to advise its guests of the presence of such devices (either by including a disclosure in the hotel terms and conditions or placing signs on the interior side of guest room doors).

The law takes effect January 2020. Failure to comply with the law will result in a fine (up to $5,000 for a first violation and $10,000 for each subsequent violation).

In its new podcast series, Employment Law This Week has released an extended Monthly Rundown, discussing some of the most important developments for employers in June 2019.

This episode includes:

  • Worker Classification in the Gig Economy
  • NLRB Announces Rulemaking Agenda
  • National Backlash Builds Against Non-Compete Agreements
  • Tip of the Week: Compliance with New Jersey’s Equal Pay Act

Stay tuned: Listen to the latest episode on our website or on your preferred platform – iTunes, Google Play, Soundcloud, or Spotify – be sure to subscribe!

Our Employee Benefits and Executive Compensation practice now offers on-demand “crash courses” on diverse topics. You can access these courses on your own schedule. Keep up to date with the latest trends in benefits and compensation, or obtain an overview of an important topic addressing your programs.

In each compact, 15-minute installment, a member of our team will guide you through a topic. This on-demand series should be of interest to all employers that sponsor benefits and compensation programs.

In our newest installmentCassandra Labbees, an Associate in the Employee Benefits and Executive Compensation practice, in the New York office, presents on “Hot New Benefits.”

Benefits are a useful and necessary tool in the recruitment and retention of employees. As a result, new benefit options are continuously being developed and offered by employers. This 15-minute crash course will discuss a few of those new benefit options as well as the tax and public policy considerations that may impact which benefits employers choose to offer.

Click here to request complimentary access to the webinar recording and presentation slides.

Our colleagues 

In Diaz, the plaintiff, who asserted she is visually impaired, alleged that the defendant – a supermarket chain based in Ohio – failed to make its website accessible to individuals who were blind. As a result, plaintiff claimed that she was unable to learn about certain products on the site, as well as promotions and coupons.

Defendant sought to dismiss the lawsuit on two grounds: (i) lack of subject matter jurisdiction, because its remediation of the barriers identified in the complaint rendered plaintiff’s claims moot; and (ii) lack of personal jurisdiction, because the Ohio-based defendant does not transact business in New York State, and accordingly, New York’s long-arm statute does not subject it to the court’s review.

Read the full post here.

With warmer weather quickly approaching, many employers are beginning to schedule happy hours, parties, softball games, and other off-site events that employees (and interns) look forward to attending. However, at offsite work events, employees might forget—or might not realize in the first place—that they are still in a workplace setting. This could result in unwelcome behavior, such as sexual harassment, which could leave an employer open to liability.

Under federal law, as well as the law of many states, cities, and municipalities, sexual harassment is considered a type of prohibited gender discrimination. New York City and New York State now require employers to provide their employees with anti-sexual harassment training. States such as California, Connecticut, Delaware, and Maine have similar requirements. Further, even where not required, case law and agency guidance recommend anti-harassment training in several other states. New York does require employers to establish policies against sexual harassment.

Employers should remind their employees that they remain subject to company policies at events outside the workplace.

No matter if harassment occurs at an outside work event or during normal business hours, employers should have clear policies and provide training so that employees are aware of applicable complaint procedures, and can bring any instance of potential sexual harassment to the employer’s attention.

While the summer can be a time for workplace comradery and other off-site events, employers should remember to make sure their employees are aware of their expectations to remain professional and to never engage in discriminatory or harassing behavior.

This tip is featured as Rule #7 in Halting Harassment’s Rules of the Road. Check out the rest of the Rules, and learn more about how Epstein Becker Green’s Halting Harassment e-learning course can help your organization foster a respectful and inclusive environment—both inside and outside the workplace.

Our colleague Maxine Neuhauser at Epstein Becker Green has a post on the Technology Employment Law Blog that will be of interest to our readers in the hospitality industry: “New Jersey Issues Updated Family Leave Act and Family Leave Insurance Act Posters.”

Following is an excerpt:

On February 19, 2019, New Jersey Governor Phil Murphy signed into law A 3975 (“the Law”), which significantly expanded the state’s the Family Leave Act (“NJFLA”), Family Leave Insurance Act (“NJFLI”), and Security and Financial Empowerment Act (“SAFE Act”).  We prepared an Act Now Advisory, summarizing the extensive changes made by the Law, including, among other things, the expanding and making uniform the definition of “family member” for all three laws, and, effective June 1, 2019, extending the NJFLA to employers that have 30 or more employees. …

Read the full post here.