Legal Updates – October 2019


A newly released state audit found that Colorado’s process for investigating and ruling on civil rights complaints is too slow.  Additionally, it was found that cases are handled without transparency and accountability and violates the state’s open-meeting law.

It was found that the Civil Rights Division violated state statute by failing to complete 39% of complaints reviewed complaints reviewed within the required 270 days, instead taking almost a year, on average, to complete its investigations.  It should be noted that complete data was only available for 933 of the 1,292 complaints during the time period reviewed.  Of those 933 cases in which data was available, 367 were not reviewed in a timely manner.

Time extensions have contributed to the problem; the division used time extension requests for 58 of 66 cases reviewed.  Notably, the division did not provide evidence for why more time was necessary, as is required by statute.  Between November 2017 and December 2018, the division requested time extensions for 1,158 cases, all of which were approved.

The report stated that the division has not implemented policies, procedures or guidance for staff to ensure that investigations are held in a timely manner.  Auditors said that they found it difficult to assess whether the Civil Rights Commission is operating fairly and in an accountable way because of the lack of documentation.  There was also a concern that the investigation lag times was partially affecting decisions.  Further, the Colorado Civil Rights Commission could not provide evidence of how it makes decisions related to discrimination complaints.

The audit also raised concerns about accessibility of records.  Evidence about decisions related to discrimination complaints were not readily available between November 2016 and June 2019.  Because the division did not maintain easily accessible records during this time, it was not possible to aggregate the records to support the division’s decisions, objectives or reporting.  In a review of cases from 2017 to 2018, the division couldn’t provide any documentation for 218 cases.

The audit found that the commission violated the state’s open-meeting law by voting in closed door meetings.

In defense of these findings, the division cited the new online system that allowed for more complaint filings as the reason for some of the issues identified.  Commission members told auditors that they believed they were in compliance with the state statutes on time extensions, despite the fact that their interpretation was not “consistent with either the spirit or plain reading of the law.”

Following the audit, the division agreed to implement timeliness goals and new data tracking by January, 2020.  The division stated that it will need to hire an additional eight people to help close cases more quickly.  It did not, however, agree to implement all of the auditor’s recommendations, including no longer initiating time extension requests meant for complainants.

The report stated that the identified problems hinder the ability to evaluate the division’s performance, find out if cases are being completed in a timely manner and don’t allow for accurate data reporting to state leaders that could lead to policy changes.

The full report can be found here.

FAMLI Family Medical Leave Insurance Program (SB19-188)

The Family Medical Leave Insurance Program (FAMLI) was enacted in 2019, and signed by Governor Jared Polis.  It creates a task force to study the issue of paid family and medical leave and to make recommendations to the legislature in preparation for “the implementation of a paid family and medical leave program in the state.”

The bill notes that “the United States is the only industrialized nation in the world that does not mandate access to paid leave benefits,” and that “nearly half of Americans live paycheck-to-paycheck and are unable to access two thousand dollars in the event of an emergency.”

The timetable includes the following:

  • October 1, 2019: Department of Labor and Employment required to provide the task force with the results of a third-party study and recommendations from experts in the field;
  • November 1, 2019: Task force required to make its preliminary recommendation and to provide the recommendations to an actuary retained by the Department;
  • December 1, 2019: Independent actuarial analysis must be prepared; and
  • January 8, 2020: Task force required to make its final recommendation.

Following the above timeline, another timeline was established that presumes:

  • July 1, 2020: Paid Family and Medical Leave Program is established;
  • January 1, 2022: Education and outreach begins;
  • January 1, 2023: the funding stream is established; and
  • January 1, 2024: the state will start paying benefits.

Self-employed workers will also have access to paid family and medical leave.

The full bill can be found here.

Anti-SLAPP (Strategic Lawsuits Against Public Participation) statute (HB19-1324)

The Anti-SLAPP bill adds new section 13-20-1101, which allows a special motion to dismiss a lawsuit that allegedly arose from a person’s right to petition for free speech under the U.S. Constitution or the Colorado Constitution, in connection with a public issue.

The bill states that “the General Assembly finds and declares that it is in the public interest to encourage continued participation in matters of public significance and that this participation should not be chilled through abuse of the judicial process.”

The bill goes on to say that “the General Assembly finds that the purpose of this part 11 is to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, to protect the. Rights of persons to file meritorious lawsuits for demonstrable injury.”

The full bill can be found here.

EEOC Explains how employers can record non-binary employees on EEO-1 report

In response to a question submitted asking how to properly record non-binary employees on an EEO-1 report, the EEOC replied, “Filers may report employee counts and labor hours for non-binary gender employees by job category and pay band and racial group in the comment box on the Certification Page, please preface this data with the phrase ‘Additional Employee Data.’  For example, ‘Additional Employee Data: 1 non-binary gender employee working 2,040 hours in Job Category 4, Salary Pay Band 5, Race/ethnicity non-Hispanic White.’”

Thus, employers may report information regarding their employees who self-identify as non-binary in the comment dialogue box on the electronic EEO-1 Report portal.  If an employer chooses to utilize this new option, a few additional suggestions are in order:

  • Use the exact text offered by the EEOC as your model, and do not add any additional information; and
  • Employers do not need to seek to identify employees who are non-binary, as this guidance allows employers to use this method for reporting on employees who have notified their employers that they identify as non-binary.

For this and other frequently asked questions are available on the Equal Employment Opportunity Commission’s website.

Salary Threshold Officially Raised by the Department of Labor

On September 24, 2019 the Department of Labor raised the annual minimum salary threshold for the white-collar exemptions, i.e. administrative, executive and professional exemptions, to $35,568 from $23,660.  This change is set to take effect January 1, 2020.  The immediate impact of this amendment means more than 1 million American workers will become newly eligible for overtime pay.

The last raise was in 2004, however, many view this rule as not going far enough because it falls well short of the Obama Administrations 2016 attempt to increase the salary threshold to more than $47,000 annually.  Obama’s proposal was blocked by a federal court in Texas in the final days of his presidency and not appealed by the Trump administration.  Other aspects of the Obama proposal are missing from the Trump proposal, such as automatic adjustments to the salary threshold every three years, tied to the cost of living and different minimum salary thresholds based on the region of the country in which and employee lives.

Additionally, the new rule states that non-discretionary bonuses and incentive payments can be used to satisfy up to 10% of the minimum salary threshold.  The new rule also raises the threshold for highly compensated employees from $100,000 to $107,432.

What does this mean for employers? Many will have to decided whether to increase employees’ salaries beyond the new salary threshold to avoid overtime pay or pay more in overtime.

Employers will still need to navigate the duties test for each of the white-collar exemptions, which have not been modified by the new rules.  The duties test for each of the white-collar exemptions are:

  • Executive Exemption: Primary duty is managing the enterprise or a department or subdivision of an enterprise AND regularly directing the work of at least two full-time employees, with the authority to hire and fire.
  • Administrative Exemption: Primary duty must be office or non-manual work that is directly related to the management or general business operations of the employer coupled with the exercise of discretion and independent judgment with respect to matters of significance.
  • Professional Exemption: Primary duty must be work requiring advanced knowledge in a field of science or learning that is customarily acquired through prolonged, specialized, intellectual instruction, and/or study.

Employers need to review the pay data for exempt workers that are below the $35,568 annual salary threshold and audit how often they work more than 40 hours in a workweek.  Additionally, employers should review each employee’s duties to make sure they meet the duties test for one of the white-collar exemptions.  Finally, employees who will now have to track their time will need some level of training in recording hours accurately.

The announcement is available here.

Upcoming Supreme Court Cases

 Keep an eye out for Supreme Court decisions in the following cases that will be heard on October 8, 2019.  The Court has devoted the day’s docket to three cases that will require a decision as to whether Title VII’s prohibition on sex discrimination extends to sexual orientation and/or gender identity.

  • Altitude Express, Inc. v. Zarda
    • Plaintiffs alleged that their discharges from employment were based on their status as gay males, which did not conform to their employer’s expectation of male behavior in violation of Title VII.
  • Bostock v. Clayton County, GA
    • Gerald Bostock, a gay man, began working for Clayton County, Georgia, as a child welfare services coordinator in 2003. During his ten-year career with Clayton County, Bostock received positive performance evaluations and numerous accolades. In 2013, Bostock began participating in a gay recreational softball league. Shortly thereafter, Bostock received criticism for his participation in the league and for his sexual orientation and identity generally. During a meeting in which Bostock’s supervisor was present, at least one individual openly made disparaging remarks about Bostock’s sexual orientation and his participation in the gay softball league. Around the same time, Clayton County informed Bostock that it would be conducting an internal audit of the program funds he managed. Shortly afterwards, Clayton County terminated Bostock allegedly for “conduct unbecoming of its employees.”
    • The issue in this case is whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of . . . sex” within the meaning of Title VII.
  • G. & G.R Harris Funeral Homes, Inc. v. E.E.O.C.
    • This case involves a claim by a biological male who was discharged after informing the employer of an intent to transition to female and to dress consistent with that intention. Suing on the employee’s behalf, the EEOC maintains that Title VII is violated by adverse actions based on an individual’s transgender status and failure to conform to sex stereotypes.  Although the Court has previously held that sex stereotyping violates Title VII, it has not yet decided whether discrimination “because of sex” extends beyond the traditional male/female gender divide. With the lower courts split on this issue, it appears that the Supreme Court will at last resolve what Congress intended.

Another employment-related issue to be decided by the Court this term is whether a plaintiff bringing a race discrimination claim under Section 1981 must prove “but for” causation – that is, “but for” race, the plaintiff would not have suffered an adverse action – in contrast with race being a motivating, but possibly not the sole, factor, as the U.S. Court of Appeals for the Ninth Circuit has concluded in Comcast v. National Association of African-American Owned Media.

Stay tuned to our legal updates for the results of the above cases.