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Joseph J. Mammone Jr.

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On March 1, 2022, Colorado Senate Bill 21-271 (SB 21-271) goes into effect. This new law will make the violation of a number of statutes, including Colorado’s non-compete law, C.R.S. § 8-2-113, a criminal offense, specifically a class 2 misdemeanor. See Colorado Senate Bill 21-271, Section 81.

In Colorado, covenants not to compete that restrict the right of any person to receive compensation for the performance of skilled or unskilled labor are void unless one of the following four exceptions are met:

  1. Any contract for the purchase and sale of a business or the assets of a business
  2. Any contract for the protection of trade secrets
  3. Any contractual provision providing for recovery of the expense of educating and training an employee who was employed by the employer for less than two years
  4. Executive and management personnel and officers and employees who constitute professional staff to executive and management personnel

Continue Reading Violations of Colorado’s non-compete statute to become a criminal offense

Texas recently enacted the Pandemic Liability Protection Act (PLPA) joining a number of other states that have passed statutory liability protections for businesses against claims arising during a pandemic including the ongoing COVID-19 pandemic. The new law, which has been signed into effect by Governor Abbott, grants retroactive liability protections for both small and large businesses. Under the PLPA, businesses of all sizes are protected from nearly all claims of injury or death from exposure to a pandemic disease regardless of whether the person injured was an employee.

The PLPA does not, however, provide Texas businesses an absolute shield from liability. Under limited circumstances a claim may still be brought for a pandemic-related injury or death:

  1. Where the business knowingly failed to warn the individual of, or fix, a condition within the business’ control, despite having a reasonable opportunity to do so, with the knowledge that the individual was more likely than not to come into contact with or be exposed to the pandemic disease, and the failure to warn or fix the condition was the cause in fact of the individual contracting the disease; or
  2. Where the business knowingly failed to implement, refused to comply with, or acted in flagrant disregard of the standards, guidance, or protocols put forth by the government that are intended to lower the likelihood of exposure to the pandemic disease, despite having a reasonable opportunity to do so, and this failure or refusal to comply was the cause in fact of the individual contracting the pandemic disease.

Continue Reading Texas employers now shielded from most COVID-19 liability

Recently the California Department of Fair Employment and Housing (DFEH) released guidance stating that employers generally may require their employees to receive a Food and Drug Administration approved vaccination against COVID-19. Under California’s Fair Employment and Housing Act (FEHA), an employer may implement a mandatory vaccination policy so long as the employer:

  1. Does not discriminate against or harass employees or job applicants on the basis of a protected characteristic;
  2. Provides reasonable accommodations related to disability or sincerely-held religious beliefs or practices; and
  3. Does not retaliate against anyone for engaging in protected activity (such as requesting a reasonable accommodation).

Continue Reading The California Department of Fair Employment and Housing blesses employers’ use of mandatory vaccination policies

The recent decline in COVID-19 infections has led numerous states to begin contemplating a roll‑back of mask mandates and related COVID-19 restrictions. Most recently, on Tuesday, March 2, 2021, Governor Greg Abbott and Governor Tate Reeves announced the imminent elimination of mask mandates in Texas and Mississippi, respectively. Both Governors also removed all capacity limits for the businesses within their states. However, these changes pose a serious challenge to employers. On the one hand, they shift employee and customer expectations about the types of restrictions that are appropriate. On the other hand, they do nothing to reduce employer risks associated with potential outbreaks in the workplace. As a result, employers will now need to engage in a careful campaign to maintain workplace safety in the face of increased employee and customer resistance to masking and other similar precautions.
Continue Reading Employers face challenges as states lift COVID-19 safety measures

On January 7, 2021, the EEOC proposed two rules, under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA), designed to clarify what incentives employers may offer employees and their family members for joining employer-sponsored wellness programs.  In the 2017 case AARP v. EEOC, the then-existing regulations on employer-sponsored wellness programs were revoked.  Since then, employers have lacked guidance on how to structure wellness programs without violating the requirements of both the ADA and GINA that individuals’ disclosures of health information be voluntary.  The EEOC’s new rules seek to balance the competing interests.  However, given the Biden Administration’s recently issued freeze on proposed rules that have not yet been enacted, employers should not act on the EEOC’s proposed rules yet.

Legal framework

Under the ADA, employers cannot require employees to disclose medical information that might enable employers to discriminate against them.  Similarly, under GINA, the disclosure of the health information of a family member of an employee must also be voluntary.  In 2016, the EEOC finalized rules that outlined how employers could incentivize employees and their family members to participate in wellness programs that required the disclosure of health information without violating the ADA or GINA.  Under the 2016 rules, an employer could offer an incentive of up to 30 percent of the total cost of self-coverage without the wellness program running afoul of the ADA and GINA.  However, in AARP v. EEOC, the United States District Court for the District of Columbia held that the EEOC had failed to provide a reasoned explanation for its 30 percent incentive limit, and as a result, the EEOC removed the incentive sections from the ADA and GINA regulations.Continue Reading EEOC proposes new rules on permissible incentives for employer-sponsored wellness programs

The Biden administration issued new guidance immediately following his Jan. 20 inauguration abrogating former U.S. President Trump’s Executive Order 13950 on Combating Race and Sex Stereotyping (the Order). Implementation of EO 13950 had previously been stayed by a preliminary nationwide injunction entered Dec. 22, 2020, in California federal court. As a result, federal contractors or organizations with a federal contract currently have no obligation to revise their diversity and equity training to omit the prohibited training topics set forth in EO 13950.

As previously discussed, EO 13950 sought to reshape the way government contractors performed diversity and equity training. It prohibited, among other things, restrictions on training about affirmative action, discussion of reparations and implicit bias, and guidance regarding limiting micro aggressions. Further, the Order mandated employer postings in the workplace as well as compliance communications with organized labor groups.Continue Reading DOL stops enforcing Executive Order 13950 on diversity training

On December 2, 2020, the CDC updated its guidance on COVID-19 quarantines. Previously, the CDC advised that asymptomatic individuals should quarantine for 14 days after their last exposure to someone who has COVID-19. The CDC’s prior guidance did not allow for the reduction of that 14-day period based on the receipt of a negative COVID-19…

The Centers for Disease Control and Prevention (CDC) recently updated its definition for close contact in its COVID-19 guidelines. As a result, employers should immediately reevaluate both their social distancing protocols and their contact tracing protocols to ensure full compliance with CDC standards.

The updated definition clarifies that it is contact within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period. Further, close contact is relevant for contact tracing start two days before the onset of symptoms through the time the infected person is removed from the workplace. Likewise, close contact with asymptomatic individuals will trigger exclusion based on qualifying contact up to two days prior to the asymptomatic individual’s positive COVID-19 test. As a result of these changes, employers should evaluate two key issues.
Continue Reading New CDC close contact definition announced for contact tracing and worker exclusion

The U.S. Department of Labor, Wage and Hour Division (WHD) recently announced it will no longer automatically pursue pre-litigation liquidated damages from employers.  WHD now takes the position that recovering pre-litigation liquidated damages should only occur in a limited number of cases and it will more selectively pursue such additional recoveries.

WHD issued this new guidance in response to Executive Order 13294.  Per WHD’s announcement, the policy shift represents an effort to help spur economic recovery.  The change also is intended to reduce the time needed to conclude Fair Labor Standards Act (FLSA) administrative cases to facilitate faster payment of back-wages to aggrieved employees.
Continue Reading Pursuit of pre-litigation liquidated damages no longer the DOL’s default policy

With the spike in reported COVID-19 cases in Texas, counties have started to re-impose previous safety measures. As a result, many of the requirements of the “Stay Home, Stay Safe” orders from earlier this year have come back into effect for a second time – highlighting the continuing challenge of COVID-19 workplace compliance.

On the morning of June 19, 2020, Dallas County Judge Clay Jenkins issued a Supplemental Order on Continuing Requirements, which went into effect that night at 11:59 p.m. The order requires all commercial businesses that provide goods or services directly to the public to require all of their employees and visitors to wear a face covering. The face covering requirement is part of a health and safety policy that each business operating in the county must now develop and implement. The order also states that each business’s health and safety policy may also include other mitigating measures such as temperature checks and health screenings. Businesses operating in Dallas must post their health and safety policies in a location sufficient to provide notice to employees and visitors of its requirements. Businesses that fail to comply with the order face a fine of up to $500 per violation.Continue Reading Face covering requirements reappear overnight for many businesses operating in Texas