CO Compliance Connection- February 2022

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Federal Compliance Update 

Congress Bans Forced Arbitration/Waivers of Sexual Harassment and Assault Claims

On Feb. 10, 2022, the U.S. Senate passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (the Act). The U.S. House of Representatives had previously passed the Act, which is now expected to be signed by President Biden. Once signed, the Act will go into effect immediately.

Ending Forced Arbitration Act

The Act would essentially prohibit employers from requiring employees to resolve claims of workplace sexual harassment or assault through arbitration or other alternatives to court litigation or waive them in advance.

Specifically, under the new law, an employer may not enforce a pre-dispute arbitration agreement or pre-dispute joint-action waiver against a person who files a case alleging sexual harassment or sexual assault in a federal, state or tribal court. An individual making a claim of sexual harassment or assault may choose to participate in arbitration or other litigation alternatives but may not be required to do so.

Covered Disputes

Whether the new law applies to a particular dispute will be determined under federal law and that determination will be made by a court, not an arbitrator. The Act will apply to any dispute or claim arising after the date the law is enacted.

The law applies specifically to cases involving sexual harassment and assault. It does not apply to sex discrimination or other types of harassment or assault. Therefore, it does not prohibit employers from using mandatory arbitration agreements or waivers in other employment-related claims or lawsuits.

The new law would make all pre-dispute arbitration and waiver agreements for workplace sexual harassment and sexual assault claims unenforceable.

Department of Labor Increases Civil Penalty Amounts for 2022

The Department of Labor (DOL) has released its 2022 inflation-adjusted civil monetary penalties that may be assessed on employers for violations of a wide range of federal laws effective January 15, 2022, including:  

To maintain their deterrent effect, the DOL is required to adjust these penalties for inflation, no later than Jan. 15 of each year. Key penalty increases include the following: 

• The maximum penalty for violations of federal minimum wage or overtime requirements increases from $2,074 to $2,203 per violation.
• The maximum penalty for failing to file a Form 5500 for an employee benefit plan increases from $2,259 to $2,400 per day. 

The maximum penalty for violations of the poster requirement under the FMLA increases from $178 to $189 per offense.

Action Steps

Employers should become familiar with the new penalty amounts and review their pay practices, benefit plan administration and safety protocols to ensure compliance with federal requirements.

State Compliance Update

With the surplus of proposed legislation coming and the numerous ones enacted in the last couple of years, it is easy to fail to remember existing ones.  

This is a review of some of the existing discrimination and accommodation regulations for most Colorado employers.  The following information provides a summary of the main categories and does not provide a list of employers that may be exempt from each.  

Colorado Employment Discrimination and Accommodations

Colorado law prohibits employment discrimination based on several protected classes and characteristics including the following (not an all-comprehensive list):

Protected Classes and Characteristics

Under the Colorado Anti-Discrimination Act, employers are general y prohibited from harassing or discriminating against applicants and employees in employment matters on the basis of:

• Disability
• Race (including hair texture, hair type, or a protective hairstyle commonly or historically associated with race)
• Creed, Color, Sex (including sexual orientation, Gender identity, or gender expression) 
• Religion
• Age (40 or older) National origin Ancestry
• Marriage to a coworker, in limited circumstances 
• Pregnancy, childbirth, and related conditions Lawful activity outside of work
• AIDS/HIV
• Arrest or sealed conviction records 

Wage Disclosure

Employers may not require employees not disclose their wages or sign a document that purports to deny an employee the right to disclose their wage information (unless federal law prohibits this restriction). Employers may not take any adverse employment action against an employee who inquires, discloses, compares, or otherwise discusses their wages (unless federal law would prohibit this restriction).

Discrimination Against Military Personnel

Employers must refrain from the following:

• Discriminating against or discharging any member of the civil air patrol because of their membership.
• Hinder or prevent a member from performing during any civil air patrol mission for which they are entitled to leave.
• Refusing to hire or discharging any person from employment due to military status. Hindering or preventing any person from performing any military service cal ed upon to perform by proper authority.
• Dissuading any person from enlisting in the National Guard by threat or injury in respect to their employment, trade, or business.

Persons with Disabilities (In addition to the federal Americans with Disabilities Act)

Individuals with a visual impairment, hearing impairment, or a disability are entitled to the same employment opportunities on the same terms and conditions as individuals without a disability. 

Employers must:

• Allow an employee with a disability who is accompanied by a service animal to always keep the animal with them in the workplace.
• Not fail or refuse to hire or discharge any individual with a disability, or otherwise discriminate against any individual with a disability, with respect to compensation, terms, conditions, or privileges of employment because they are accompanied by their service animal.
• Provide a reasonable accommodation to make the workplace accessible for an otherwise qualified individual with a disability, who is an applicant or employee, and who is accompanied by their service animal, unless the employer can show that the accommodation would impose an undue hardship on its business. An undue hardship is defined under the federal Americans with Disabilities Act (ADA).
• Additional y, employers may not:
• Withhold, deny, deprive, or attempt to withhold, deny, or deprive a qualified individual with a disability who is accompanied by a service animal or a trainer of a service animal (trainer) of any of their rights or privileges.
• Threaten to interfere with any of the rights of a qualified individual with a disability who is accompanied by a service animal or a trainer.
• Punish or attempt to punish a qualified person with a disability or trainer for exercising or attempting to exercise a right or privilege.
• Interfere with, injure, or harm, or cause another dog to interfere with, injure, or harm a service animal.

Compliance Calendar

February

2/1 – Deadline for posting OSHA Form 300A

2/28 – Forms 1094-B, 1095-B, 1094-C, and 1095-C Filing Deadline (paper filers)

March

3/31 – Forms 1094-B, 1095-B, 1094-C, and 1095-C Filing Deadline (electronic filers)

April

4/12 – 2021 EEO-1 Component 1 Data Collection Opening

4/30 – Remove your OSHA Form 300A