TRIAL TALK Do you have one or more employees? Read this issue! - Patricia S. Bellac Law Firm, LLC
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Do yo
u hav
e one
TRIAL TALK
or mo
re em
ploye
es? Re
ad th
is issu
e!
April — June 2021 Volume 70 Issue 2
TRIAL TALK
April - June 2021 Volume 70 Issue 2
TRIAL TALK
April – June 2021 .............. .... ....... ......... .... Volume 70 Issue 2
FEATURES
EMPLOYMENT LAW
9 The Equal Pay for Equal Work Act: A Landmark Change in
Colorado Employment Law
Do you have one or more employees? Read this issue!
By Brian Moore and Rachel Tumin
21 Colorado’s Healthy Families and Workplaces Act (“HFWA”)
By Rachel E. Ellis and Michelle R. Gibson
27 The Importance of Metadata and Its Role in Litigation
DEPARTMENTS By Allison Derschang
4 Officers & Editors
35 Intersectional Discrimination and the Courts:
5 From the Executive Director Pleading Combined Biases
By Sara N. Maeglin
By Julie Whitacre
7 Editor’s Introduction 41 The Realities of a Virtual Trial: Tips for Your Success
By Thomas Arckey & Robert Truhlar By Kelli Riley
32 EAGLE Donors 45 Efficiently Resolving Non-Compete Cases Via Declaratory
Judgement Actions in Colorado
53 Book Review: 30(b)(6) Deposing
By Patricia S. Bellac
Corporations, Organizations & the
Government, 2nd. ed.
JURY PERSUASION
By Kaitlin Spittell
57 Finding the Joy
By Tim Garvey (Interview of Jesse Wilson)
Colorado Trial Lawyers Association TRIAL TALK® (ISSN 0747-1378) is published bimonthly by the Colorado Trial Lawyers
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Colorado Trial Lawyers Association Trial Talk April – June 2021 3
OFFICERS & EDITORS
E DITORIAL EDITOR- IN- CHI EF
COMMITTEE Nicole M. Quintana
Tom Arckey (303) 592-5900
tja@arlaw.us nicole.quintana@omtrial.com
Sam Cannon
sam@cannonlaw.com EDITORIAL &
Anna Burr ARTICL E INQUI R ES
anna@burr-law.com
K. Holly Bennett, Managing Editor
Yerin Cho (303) 831-1192
yerin@zdfirm.com hollyb@ctlanet.org
Frank Cristiano
O F F I C E RS & ST A F F frank@cristianolaw.com
ADV ERTISING
PRESIDENT Carrie Frank
carrie@kleinfrank.com John Grant
Deborah Taussig, Boulder (866) 451-2018
Natacha Gutierrez johndgrantctla@gmail.com
PRESIDENT-ELECT
Jason Jordan, Greenwood Village natacha@nmgutierrezlaw.com
VICE PRESIDENT
K.C. Harpring
kch@denvertrial.com
DESIGN/PRODUCTION
Thomas Neville, Denver Greta Hanson Maurer
Heather Jackson G. Wiz! Graphic Design
SECRETARY heather@leerosenbaum.net (719) 485-3881
Kari Jones Dulin, Denver gwizgreta@gmail.com
Chad Johnson
TREASURER hello@chadjohnsonlaw.com
Modern Litho-Print Co.
Sam Cannon, Fort Collins (800) 456-5867
Cecil Morris
cmorris@fwlaw.com bob@modernlitho.com
IMMEDIATE PAST-PRESIDENT
Michael Nimmo, Denver Blain Myhre
blainmyhre@gmail.com
EXECUTIVE DIRECTOR
Julie Whitacre Stuart Ollanik
(303) 831-1192 stuart@ollanik-law.com
juliew@ctlanet.org Ross Pulkrabek
rpulkrabek@keatingwagner.com
Nicole Quintana
nicole.quintana@omtrial.com
Adrian Sak
adrian@saklawfirm.com
Bob Truhlar
roberttruhlar@att.net
Babar Waheed
bw@caplislaw.com
4 April – June 2021 Trial Talk Colorado Trial Lawyers Association
Whitacre | FROM THE EXECUTIVE DIRECTOR
Mental Health Awareness Month
By Julie Whitacre
I n May 1949 the National Association for Mental Health
(now known as Mental Health America) started Mental
Health Awareness Month. For the last 72 years, the month of
happy to announce a new partnership with eHome Counseling
Group to offer CTLA members face-to-face video counseling
with licensed mental health therapists who have experience
May has been dedicated to raising the awareness and reducing working with lawyers.
the stigma of mental or behavioral health issues.
eHome is a nationwide virtual counseling network that pro-
Even before the COVID-19 pandemic the United States vides anytime, anywhere mental health treatment by computer,
was in the midst of a mental health crisis with 20 percent of tablet or smartphone. They provide a convenient, confidential
the general population suffering from a behavioral health and highly effective alternative to traditional office-based
issue. For lawyers, those numbers are even more staggering: counseling programs using a HIPAA-compliant, integrated
• Attorneys are 3.6 times more likely to suffer from platform. This new member benefit will allow you to partici-
depression than nonlawyers. pate counseling sessions from your home or office and avoid
• The suicide rate for lawyers is double that of the the time and hassle of driving to a counselor’s office.
general population. While attorneys may be subject to unique risks for substance
• A recent survey of legal professionals indicated that misuse and relapse, the good news is that they demonstrate
36.4% of respondents had scores consistent with prob- some of the highest success rates in any specialized population.
lematic drinking; in comparison, scores consistent A 2016 longitudinal study reported that 81% of the participants
with problematic drinking have been self-reported who completed their treatment programs maintained sobriety
by only 15.4% of surgeons. for five years posttreatment.
• When compared to the general population, women in This job takes its toll on all of us, and it’s important to take
legal professions had much higher rates of problematic care of ourselves so that we can take care of our clients and
drinking (39.5%) than women in the general popula- each other. I hope you are as excited as I am about this new
tion (19%). partnership and will go to www.ehomegroup.com/lawyers to
In honor of Mental Health Awareness Month, and in learn more about the service eHome has available to help
consideration of the distinctive needs of our members, I am CTLA member prioritize their mental health. sss
.
Colorado Trial Lawyers Association Trial Talk April – June 2021 5
6 April – June 2021 Trial Talk Colorado Trial Lawyers Association
Arckey & Truhlar | EDITOR’S INTRODUCTION
Keeping Pace with Fast
Changing Employment Law
and Its Current Applications
By Thomas Arckey and Robert Truhlar
W e always ask ourselves how to keep up and stay ahead
of the whirlwind of employment information. Help is
standing by. Read this TRIAL TALK® cover to cover. You
Sara Maeglin explains “intersectionality” in the world of
discrimination. “What?” you ask. If you haven’t formulated
your approach to pleading this concept of bias, you must
may; however, only peruse the more than 250 endnotes, lead- read this article. Sara’s research and practice tips—from
ing you directly to statutory, regulatory and case law citations. client intakes to filing complaints—are invaluable.
We can’t ignore the fact that two major employment laws Kelli Riley shares her experience with multiple aspects
became effective on January 1, 2021 in Colorado. Also, the of online practicing in employment law. By recounting
pandemic made online technology a greater resource, or her efforts all the way to a virtual trial, she warns us of
hazard, than ever previously. New approaches are evolving what glitches are almost sure to be encountered. Kelli de-
to tackle ongoing issues in the workplace. scribes practice tips to make the journey for any of us a lit-
tle less bumpy.
Brian Moore and Rachel Tumin deal with the many facets
of the Equal Pay for Equal Work Act, effective January 1, Patricia Bellac presents the use of declaratory judgment
2021. This is a significant change in Colorado employment actions in addressing non-compete agreements. It is not the
law. Our advice is for everyone to read the first three para- most common approach we see, but after reading this article,
graphs of Brian and Rachel’s article, then they will know you must have it in your tool kit. Patricia presents a real case
they must read on. example of the process and its benefits for your clients.
Rachel Ellis and Michelle Gibson lay out the intricacies Kaitlin Spittell gives us the highlights and reasons to read
of the Healthy Families and Workplaces Act. Did you know an informative 594-page guide to Rule 30(b)(6) depositions.
that, beginning January 1, 2021, Colorado employers with Her book review may convince you to order the reference
16 or more employees, and beginning January 1, 2022, all before your next 30(b)(6), and especially before your first
Colorado employers will be required to provide paid sick one, if that is the case. You may even learn a thing or two
leave? How much? How is it calculated and recorded? you didn’t know just reading the review.
What can this leave be used for, and how is it requested?
We thank each of our authors for the hours of work ob-
What are the written notice and posting requirements?
viously put into this collection of articles. We know that
Rachel and Michelle walk us through it.
remotely meeting and servicing our clients has its draw-
Allison Derschang reminds us of the presence of meta- backs. We can’t help but wonder what our clients think.
data in all those documents we prepare and send. Examples
This issue’s cover features Spike the dog in a re-
of the power of discovery when considering what’s below
mote meeting. Photo taken by Christine Breen, Senior
the surface (metadata) is both fascinating and a little fright-
Associate at Truhlar and Truhlar, L.L.P. Hope you enjoy
ening. Allison provides some comfort by explaining what it
the reading. sss
is all about.
Colorado Trial Lawyers Association Trial Talk April – June 2021 7
8 April – June 2021 Trial Talk Colorado Trial Lawyers Association
Moore & Tumin | EMPLOYMENT LAW
The Equal Pay for Equal Work
Act: A Landmark Change in
Colorado Employment Law
By Brian Moore and Rachel Tumin
T he Colorado Equal Pay for Equal Work Act (“EPEW”)
took effect at the start of this year. If enforced by the
courts as written, it could bring about the most fundamental
The General Assembly’s response was to pass the EPEW,
C.R.S. § 8-5-101, which took effect on January 1, 2021. The
General Assembly’s objective in passing the EPEW was not
shift in Colorado employment law—and expansion of em- merely to prohibit intentional pay discrimination, but “to
ployment related claims—in several decades. Any lawyer close the pay gap in Colorado.”3 In several respects the EPEW
who even occasionally advises clients on potential employment is modelled on the Equal Pay Act. However, given the Gen-
claims should understand its provisions, as should any law eral Assembly’s observation that the Equal Pay Act failed to
firm with employees of its own. accomplish the General Assembly’s objective of closing the
pay gap, it is unsurprising that in several respects the EPEW
With the exception of difficult to prove and rarely brought
goes further than the Equal Pay Act. First, under the Equal
disparate impact claims, before the EPEW took effect, discrim-
Pay Act, once the plaintiff proves a pay disparity, the em-
ination claims generally have required proof of discriminatory
ployer can avoid liability by proving that the disparity is
intent; i.e., that the plaintiff’s sex or other protected classi-
caused by any factor other than sex. Under the EPEW, the
fication was the reason for the adverse employment action
employer can avoid liability only by proving that the dis-
that is the subject of the lawsuit. Under the EPEW, no such
parity results from one of the specific factors approved by
intent is required. The mere fact that an employee is paid less
the General Assembly. Second, the EPEW loosens the Equal
than an employee of a different gender for performing sub-
Pay Act’s stringent requirements for what constitutes equal
stantially similar work is actionable, and the employer can
work. And finally, the EPEW includes several additional
avoid liability only by proving a narrow affirmative defense.
prohibitions and mandates aimed at addressing practices
The potential liabilities created by this statute are a bit mind which, although not directly discriminatory, are believed to
boggling. Consider, for example, an employer that employs contribute to the persistent pay gap.
ten women and ten men in the same position. The employer
pays one of the women and one of the men more than the II. Overview of Statute
other eighteen employees, because it made them generous
The EPEW is divided into Part 1 and Part 2. Part 1 is es-
offers to lure them away from a leading competitor. It appears
sentially retrospective, addressing the legacies of systemic
to us that, if the court enforces the EPEW as written, this em-
gender-based pay disparities by creating a cause of action
ployer would simultaneously be liable to nine of the women
for such disparities. It also prohibits employers from inquir-
for paying them less than the highly paid man and to nine of
ing into a candidate’s wage history or relying on wage history
the men for paying them less than the highly paid woman.
in setting an employee’s pay. Part 2 is focused on creating
conditions which make it harder for pay disparities to arise,
I. Historical Context and Distinction from
by requiring employers to publish promotional opportunities
Equal Pay Act
and include certain information in job announcements. In
In 1963, Congress passed the Equal Pay Act1, which pro- conjunction with the new law and through its formal rule-
hibited employers engaged in interstate commerce from making procedure, the Colorado Department of Labor and
discriminating based on sex in the amount they pay to em- Employment (“CDLE”) published the Equal Pay Transpar-
ployees performing essentially identical work. In 2019, the ency (“EPT”) Rules, establishing standards and enforcements
Colorado General Assembly observed that, 56 years later, for Part 2. Additionally, the CDLE has published Interpre-
“women still earn significantly less than their male counter- tive Notice & Formal Opinion (“INFO”) #9 on Part 2,4
parts for the same work,” with women in Colorado “earn[ing] which is helpful to understanding the agency’s position,
just 86 cents for every dollar men earn.”2 though it is not binding law.
Colorado Trial Lawyers Association Trial Talk April – June 2021 9
EMPLOYMENT LAW | Moore & Tumin
A. Part 1: C.R.S. §§ 8-5-101 through merit system; (iii) a system that measures from another firm.15 Requiring an
8-5-104 earnings by quantity or quality of pro- employee to sign an agreement which
Centrally, the EPEW Part 1 codifies duction; (iv) the geographic location would prohibit them from freely
two sets of employee rights: the first where the work is performed; (v) sharing information regarding their
with respect to wage discrimination education, training, or experience, to compensation, with whomever they
and the second with respect to pay the extent reasonably related to the like, also is a violation.16
history. Both focus on “wage rates,” work in question; and (vi) travel, if a
This section also includes a number
which includes all pay and benefits regular and necessary condition of the
of prohibitions on retaliation, discussed
received by an employee.5 This def- work performed (collectively, the
more below, which essentially prohibit
inition begs a number of questions “Permitted Factors”).11 Second, each
an employer from retaliating against an
discussed at the end of this article. relied-upon Permitted Factor must
employee from asserting any right
have been applied “reasonably.”12
given by Part 1 of the EPEW.17
1. Gendered Pay Disparities Are Third, the employer must not have
Wage Discrimination relied upon wage rate history to justify 3. Enforcement
The EPEW provides a cause of a disparity in current wage rates.13 The primary mechanism for enforce-
action for wage discrimination under The most notable aspect of this por- ment of Part 1 is private judicial action.
circumstances that, previously, would tion of the statute is that it seems clearly Any person aggrieved by a violation of
not have been actionable. An employee to contemplate that a wage disparity Part 1 has a private cause of action
meets their burden in establishing a that is not motivated by sex, but by which may be pursued in district court.
claim for wage discrimination where some other factor not listed specifically These private causes of action are dis-
they show that they received less com- in the statute, is actionable as “discrimin- cussed in Part III of this article.
pensation, in total, than an employee of ation.” Consider nepotism: a restaurant The CDLE does not have direct
a different sex received, “for substanti- employs ten line cooks; one of them is enforcement authority over Part 1 of
ally similar work, regardless of job title, the niece of the kitchen manager; and the EPEW. However, it is authorized
based on a composite of skill; effort . . .;for no reason other than favoritism, she to make resources available to
and responsibility.6 The law notes is paid more than the other nine. There aggrieved individuals and to offer to
specifically that “effort” includes con- is no “discrimination” as that term has mediate complaints.18
siderations of shift work, indicating been traditionally understood, but every
that shift differentials, alone, will not line cook who is not a woman will have The statute also states that “[n]othing
give rise to an actionable disparity.7 a cause of action under the EPEW. For in this section prevents an aggrieved
person from filing a charge with the
“Sex” is defined as “an employee’s this reason, it may be helpful to think
Colorado civil rights division pursuant
gender identity.”8 Hence, it appears, as in terms of actionable pay disparities,
to section 24-34-306.”19 That statute,
examples, that a woman can establish a rather than of actionable discrimination.
however, was not amended to give the
claim by proving she is paid less for sub- 2. Employee Rights Over Wage
CCRD jurisdiction over alleged viola-
stantially similar work than man and a Histories and Information tions of the EPEW. Accordingly, we
man can establish a claim by proving he
Under the EPEW, employers may understand that a person may both file
is paid less for substantially similar work
a charge with the CCRD alleging pay
than a nonbinary person. The definition not: seek a candidate’s wage history; use
an individual’s wage history in setting discrimination in violation of the
of wage discrimination includes dis-
Colorado Anti-Discrimination Act and
parities on the basis of sex (i.e., gender their current pay; or prohibit employees
a civil action alleging the same pay dis-
identity) in combination with disability, from discussing their compensation.
14
parity violated the EPEW, not that the
race, creed, color, sexual orientation, re- Wide ranges of conduct are prohibited
CCRD has authority to investigate al-
ligion, age, national origin, or ancestry.9 and protected, and best understood by
reading the exact provisions within leged violations of Part 1 of the EPEW.
Under the statute, any such pay this subsection of the EPEW. To take B. Part 2: C.R.S. §§ 8-5-201 through
disparity is defined as illegal discrim- one common practice, it appears now to
8-5-203
ination, unless three circumstances are be illegal for an employer deliberately
present.10 First, the wage disparity Part 2 of the EPEW establishes a
to match or beat a candidate’s current
must be explained entirely by one or revolutionary set of requirements for
salary in order to recruit them away
more of: (i) a seniority system; (ii) a
10 April – June 2021 Trial Talk Colorado Trial Lawyers AssociationMoore & Tumin | EMPLOYMENT LAW
hiring and promoting employees. To access to further opportunities for associate turns down the offer for any
satisfy these, job opportunities will growth than any existing position. 23 It reason, the firm is not going to look for
almost always have to be published does not matter whether the employer someone else to make a partner. The
internally before a hiring decision is ultimately fills the position internally statute does not make such distinctions,
made. The announcement must include (i.e., through a promotion) or externally and the firm must publish to all em-
specific information about the position (i.e., through a new hire). In effect, ployees the “available” position of
and wage rate (including benefits), as every position meets this definition, partner in the firm.
well as how employees can apply for unless the employer is hiring to or cre-
Although it is not expressly stated in
it.20 Backed by potentially significant ating the lowest position in its ranks.
the EPEW or the EPT Rules, the CDLE
fines and legal ramifications, employers
Moreover, the posting must be pub- has taken the position that notices must
should be sure they understand what
lished to all employees, even those be published sufficiently in advance of
the law requires prior to making any
clearly unqualified for the position.24 a hiring decision to allow qualified
hiring decisions.
Postings can set minimum qualifica- employees to apply.27 An employer
These requirements may seem oner- tions for applicants, but an employer makes the required “reasonable effort”
ous, but they advance a core policy cannot limit notices to those employees by posting the opportunity in writing,
objective of the EPEW. Until now, it deems qualified.25 These requirements by any method(s) reaching all employees
promotions often have occurred via a apply whether or not the employer will on the same day.28
“tap on the shoulder,” with employees announce the open position publicly.
2. Exceptions to the
other than the one pre-selected by man- Notice Requirement
As an example, consider a law
agement not even given the opportunity
partnership that employs a paralegal There are a handful of exceptions
to apply. This allows implicit bias to
and an administrative assistant. Wish- under which a promotional opportunity
act unchecked. The law seeks to com-
ing to expand their practice, the need not be announced to current em-
bat this by requiring employers to
partners decide to create an associate ployees, at least immediately.29
announce to every promotional op-
attorney position. They have in mind to
portunity to every employee, so that The first applies to automatic pro-
hire a previous law clerk who has been
all qualified employees have a chance motions after a trial period.30 When an
recently admitted to the bar. The antici-
to apply, at least, to better positions— employer puts in writing that an em-
pated position is a promotion opportunity
with better pay. ployee will be automatically considered
for either the paralegal or the assistant
1. Employer Notice Requirements because it offers greater compensation, for a promotion to a specific position,
of Promotional Opportunities status, duties, and access to career ad- within one year of the employee’s
vancement than their current positions. hiring, no notice is required to promote
Employers must make reasonable
The law partners cannot simply invite the employee to the specified position.31
efforts to publish all promotion
opportunities to current employees on the former clerk to join the firm with- No posting is required for a soon-to-
the same day and prior to making a out violating the notice requirement. be-available position that is held by a
promotion decision. A “promotion
21 To comply with the EPEW, the part- current employee who does not yet
opportunity” is an (i) actual or antici- nership must publish the associate know of their impending termination.32
pated, (ii) vacancy in an existing attorney job opening to its current The employer must have a compelling
position or creation of a new position, employees before deciding to hire the need to keep this from the employee,
which (iii) offers greater compensation, former clerk. The notice may state that other than avoiding the job posting
benefits, status, duties, or access to a license to practice is a minimum requirements.33 If the need for confidenti-
career advancement than any current qualification; even knowing that no ality ends before the deadline to apply
employee’s position. 22 current employee will qualify, it must to the job, the employer must promptly
still be published. publish a compliant notice.34 In any
What job openings trigger the notice
Per CDLE guidance, the same will event, the secret may prove hard to keep.
requirement? Nearly all of them. As
be true when a law firm decides to If an employer tells any employee
defined, a promotion opportunity is
about the opening, it must also inform
any vacancy or new position—whether offer a long-time associate partnership
in the firm.26
It does not matter that the all employees who meet the minimum
anticipated or actual—that offers any
firm does not have an “opening” for qualifications for the position and all
better pay, benefits, responsibilities, or
partner in the usual sense; that is, if the employees who have substantially
Colorado Trial Lawyers Association Trial Talk April – June 2021 1112 April – June 2021 Trial Talk Colorado Trial Lawyers Association
Moore & Tumin | EMPLOYMENT LAW
similar jobs to any other employee being 4. External Job Postings discovering a violation.54 This includes
notified.35 Whether the first employee Under no circumstances does the a witness to a violation who is not
who learned of the opening and, thus, EPEW require that an employer post a themselves injured by it. Any deadline
55
those in substantially similar jobs who job opening to anyone other than its under the EPT Rules may be extended
must be notified are qualified for the existing employees. However, it does for good cause.56 The CDLE accepts
opportunity is irrelevant. mandate that any time an employer both signed and anonymous complaints;
Temporary positions, expected to posts a job outside of its organization, anonymous complaints do not trigger
the posting must include the same the administrative process and will be
last less than six months, do not require
compensation and benefits information investigated at the CDLE’s discretion.
57
postings.36 If the position may become
permanent, a posting must be published discussed in the preceding section.47 The CDLE expects complaints and
in time for employees to apply to it.37 The CDLE has indicated that it will employer’s responses to be detailed.
broadly construe what will constitute a Complainants should include any rele-
Finally, the posting requirement does job posting; for example, we expect it vant documentation they are able to
not apply to positions to be performed will include an email to a specialty bar provide; the CDLE will cease investi-
entirely outside of Colorado.38 Note, or legal association listserv informing gating any complaint that fails the raise
however, that according to the CDLE, the group of a job opening.48 Notably, a reasonable inference of a violation of
this exception does not apply to a re- the CDLE also takes the position that the EPEW Part 2.58
mote position, presumably because it the requirements can be met by includ-
could be performed either within or ing in any posting a link to a separate Each violation of Part 2 is punish-
outside the state.39 page that has the requisite informa- able by a fine of $500 to $10,000,
tion.49 Although a job posting published although our experience is that the
3. Notice Contents
The EPEW sets out what information entirely outside Colorado is not subject CDLE currently is offering to suspend
to this requirement, no online posting these if the employer promptly cures
must be included in internal notices of its violations.59 Any number of job
promotional opportunities.40 They must accessible by Colorado residents will
be deemed to have been published postings about a single position con-
include compensation information and stitute a single violation.60 The CDLE
a general description of all other bene- entirely outside Colorado.50
can order employers to comply with the
fits offered.41 A compensation range is The content mandate is imposed EPEW.61 Continued non-compliance
acceptable if it is the employer’s good only on the employer. CDLE guidance may be a misdemeanor and carry addi-
faith and reasonable estimate of what it confirms that a third party through tional fines of $100 or more, per day.62
expects to pay a hired candidate.42 The which a job posting is published is not
listing must describe any other compon- subject to penalties for publishing job No private cause of action exists
ents of the wage rate, including bonuses, postings that do not comply with the solely for violation of Part 2. However,
commissions, or other forms of com- requirements.51 where a plaintiff brings suit for a viola-
pensation.43 Under the EPT Rules, the tion of Part 1, they may also seek relief
5. Record Keeping Requirements for the employer’s violation of Part 2.
benefits description must identify all
major benefits, such as health care, Employers must keep records of job
retirement, and paid days off, and any descriptions and wage rate histories for III. Private Causes of Action
tax-reportable benefits, but need not each employee for the duration of their A. Claims for Pay Disparities
include minor “perks,” such as use of employment and for two years after.52
1. Elements of the Plaintiff’s Claim
an on-site gym.44 The CDLE interprets 6. Enforcement
this last component as requiring a de- At its simplest, an employee has a
Whereas Part 1 of the EPEW is to claim for wage discrimination under
scription of “the nature of these
be enforced primarily through private the EPEW if they are paid less than an
benefits and what they provide, not
causes of action, the CDLE has pri- employee of a different sex is paid for
specific details or dollar values[.]”45
mary enforcement authority over Part 2 substantially similar work. This is set
The notice must also include informat-
requirements and has set up an admini- forth in C.R.S. § 8-5-102(1).
ion concerning how employees may
strative process for this purpose.53 Any
apply for the opportunity.46 When assessing a possible claim,
“aggrieved person” can file a complaint
with the CDLE within one year of then, the first substantive question is
Colorado Trial Lawyers Association Trial Talk April – June 2021 13EMPLOYMENT LAW | Moore & Tumin
whether the employee has a compar- Act caselaw), the defendant will be good faith and reasonable belief that its
ator of a “different sex.”63 Because the liable, unless it carries the burden of conduct did not violate the EPEW will
EPEW defines “sex” as “an employee’s proving the affirmative defense made preclude an award of liquidated dam-
gender identity,” a gender non-conform- available under the EPEW. As ages for the wage discrimination.76
ing employee will have a claim when articulated in the statute, that defense
To prove this defense, the employer
they are compensated less than a cis- has four elements.69
must show both that its conduct was in
gender colleague as much as a woman
First, the employer must prove that good faith and that it had reasonable
compensated less than a man has such
the pay disparity is explained by one or grounds for believing it did not commit
a claim. The same is true in reverse.
more of the six Permitted Factors.70 wage discrimination.77 A pay audit de-
The next question is whether the signed to address wage discrimination
Second, the employer must show
employee and their colleague perform may be evidence that the employer’s
that it applied those Permitted Factors
“substantially similar work.” Job titles violation was in good faith.78 The audit
relied upon in a “reasonable” manner.71
are disregarded, and this inquiry looks needs to be “thorough and comprehen-
This in itself represents a significant
at a composite of skill, effort, and re- sive” and conducted “with the specific
departure from existing law, under
sponsibility.64 In the absence of further goal of identifying and remedying
which the reasonableness of the
definition in the EPEW or its related unlawful pay disparities.”79 It must
employer’s nondiscriminatory reason
rules, expect litigants to look to the also be recent: completed within two
for acting is irrelevant: “Title VII is not
Equal Pay Act for guidance in com- years prior to the commencement of a
violated by the exercise of erroneous
paring relative skill, effort, and civil action under the EPEW.80 Audits
or even illogical business judgment.”72
responsibility.65 However, the Equal may be costly, but the potential liabil-
Pay Act requires “equal work on jobs Third, the employer must prove that ity may be greater.
the performance of which requires “each [permitted] factor relied on . . .
B. Causes of Action for Pay
equal skill, effort, and responsibility, accounts for the entire wage rate
History Protections
and which are performed under similar differential.”73 Note that when read
working conditions.” The EPEW ap- literally, this effectively would prohibit Part 1 of the EPEW prohibits em-
pears to relax this test at least somewhat, employers ever from relying on two ployers from seeking a prospective
so plaintiff’s counsel should not assume permitted factors. If a wage disparity is employee’s wage history, relying on
they are stuck with often stringent explained both by seniority and by the prospective employee’s wage his-
caselaw under the Equal Pay Act. performance, then it will not be the tory in setting their compensation, or
case that “each . . . accounts for the prohibiting employees from discussing
Finally, there is the wage rate itself. or disclosing information concerning
entire” disparity. It seems more likely
The EPEW defines “wage rate” into their compensation. A violation of any
to us that the courts will interpret this
two categories, both of which encompass of these provisions will give rise to a
provision practically to mean that all
the value of all compensation and bene- private cause of action by the aggrieved
Permitted Factors relied upon, taken
fits that the employee receives.66 For individual. The statute does not set forth
together, explain the entire disparity.
an employee paid on an hourly basis, any affirmative defenses to such claims.
their wage rate is their hourly compensa- Finally, the employer must show that
tion plus the value per hour of all other it did not rely on compensation history The first prohibition is more than a
compensation and benefits they receive to justify a present disparity. It is hard prohibition on asking job candidates,
74
from the employer.67 For an employee to see how this will not already have themselves, about their past wage rates:
paid on a salary basis, their wage rate is been established, if the employer has as written, the law bans employers
the total of all compensation and ben- proven that the entire disparity is from taking any steps to find out what
efits they receive from the employer.68 explained by Permitted Factors. a prospective employee was previously
paid. If a prospective hire last worked
2. Defenses Available to b. To an Award of for a friend, do not ask the friend what
the Employer Liquidated Damages
they paid the candidate.
a. To Liability for Liquidated damages, equal to the
Wage Discrimination economic damages, are part of the The second prohibition, on using
Once the plaintiff establishes the relief available to an employee who wage history, is perhaps the most
foregoing elements (referred to as a prevails on an EPEW wage discrimin- interesting when examining causes of
“prima facie case” under Equal Pay ation claim.75 However, an employer’s action. Consider a company making an
14 April – June 2021 Trial Talk Colorado Trial Lawyers AssociationMoore & Tumin | EMPLOYMENT LAW
offer to a candidate currently employed took an adverse action against plaintiff; (why assisting in the enforcement
by a firm the hiring manager knows to and that the protected activity is the of that prohibition should not
pay unusually low salaries. The hiring reason the defendant took the adverse receive the same protection is
manager might choose to offer the employment action.82 unclear); and
candidate less than other new hires, • With respect to any person,
1. Protected Activities
assuming it still will be enough to in- inquiring about, disclosing, com-
duce the candidate to accept. It appears Part 1 of the EPEW specifically
paring, or otherwise discussing
that individual will have a claim under identifies the following activities as
an employee’s wage rate.83
the EPEW for the reduced amount of protected against retaliation:
their compensation, even if they cannot • In the case of a prospective em- Part 2 of the EPEW does not contain
identify a comparator of a different ployee, declining to disclose wage a prohibition against retaliation. This
gender identity paid more for perform- rate history; seems to leave employees vulnerable
ing substantially similar work.81 to retaliation for objecting to or other-
• With respect to an employee,
wise opposing an employer’s illegal
C. Claims for Retaliation invoking Part 1 of the EPEW (to
refusal to notify employees of promo-
be precise, C.R.S. § 8-5-102) on
Part 1 of the EPEW also contains a tional opportunities. If confronted with
anyone’s behalf;
number of prohibitions on what may that situation, consider a common law
collectively referred to as retaliation. • With respect to an employee, claim for wrongful termination in
Drawing on similar provisions in other assisting in the enforcement of violation of public policy and/or an
statutes, we assume that a claim for C.R.S. § 8-5-102(2), which con- argument for liberal interpretation of
retaliation under the EPEW will have tains all of the prohibitions in Part the anti-retaliation provisions in Part 1.
three elements: that the plaintiff engaged 1, other than the core prohibition Also note that CDLE regulations
in protected activity; that the defendant against gendered wage disparities contain a prohibition on retaliation
Colorado Trial Lawyers Association Trial Talk April – June 2021 1516 April – June 2021 Trial Talk Colorado Trial Lawyers Association
Moore & Tumin | EMPLOYMENT LAW
against individuals for participating in the plaintiff is required to show that under C.R.S. § 8-5-102(1). This raises
an investigation or enforcement action, they would not have suffered the adverse some doubt as to whether liquidated
but those regulations do not likely give action “but for” having engaged in the damages will in fact be recoverable on
rise to a private cause of action.84 protected activity.94 those other claims.
2. Prohibited Retaliation D. Tag-Along Claims for Violation of Successful plaintiffs will also re-
Employers are prohibited from “dis- Part 2 of the EPEW cover their reasonable costs, including
Although the EPEW does not create attorney fees.
102
criminating” or “retaliating” against an
individual for engaging in the first three a standalone cause of action for viola- Notably absent from the available
bulleted protected activities identified tion of Part 2, a plaintiff suing under remedies are punitive damages and
above.85 As to the fourth, employers are Part 1 may also bring a claim for viola- damages for emotional distress or other
prohibited from either discriminating or tion of Part 2.95 The court may order forms of non-economic damage (gen-
engaging in a specific list of actions, in- “any appropriate relief” upon finding erally referred to as “compensatory
cluding discharging, disciplining, or any violation of Part 2.96 If the violation damages” under Title VII and similar
threatening the individual.86 is with respect to the record-keeping statutes). For this reason, counsel should
requirements of Part 2, that relief may determine whether a client may also
“Retaliation” is not defined in the
include “a rebuttable presumption that have claims under CADA, which pro-
EPEW. It seems likely to be construed
records not kept by the employer in vides both. The EPEW explicitly makes
consistently with the wealth of caselaw
violation of section 8-5-202 contained additional claims available to plaintiffs,
applying retaliation provisions under
information favorable to the employee’s seeming to allow stacking of remedies.103
other employment statutes. That case-
claim and an instruction to the jury that
law generally requires a “material The statute of limitations on claims
failure to keep records can be considered
adverse action” for retaliation to be under Part 1 of the EPEW is two
evidence that the violation was not
actionable.87 Employer conduct that is years. 104
Where the cause of action
made in good faith.”97
reasonably likely to deter employees arises from a pay disparity, each pay-
from engaging in protected activity is E. Remedies and Statute ment tainted by the disparity will start
materially adverse, regardless of of Limitations a new limitations period.105 Although a
whether it actually deters the employee.88 Part 1 of the EPEW contains two plaintiff must bring suit within two years
This may take the form of an ultimate remedial provisions. One sets forth the of the last discriminatory paycheck,
employment decision, “such as hiring, remedies available for any violation of upon success, they may recover “back
firing, failing to promote, reassigning the Part 1.98 The other sets forth in pay for the entire time the violation
with different responsibilities, or signif- greater detail the remedies available continues, not to exceed three years.”106
icantly changing benefits.”89 Depending specifically for a gendered pay disparity.99
on the facts of the situation, retaliation Either side may demand a jury on all
also may include threats, reprimands, The remedies generally available
claims under the EPEW.107
negative or lowered evaluations, making include employment, reinstatement,
false reports or spreading untrue rumors promotion, pay increase, payment of lost
IV. Significant Questions Remain
about the employee, or taking legal wage rates, and liquidated damages.100
In the case of an employee who prevails Although we have risked some
action against them.90 However, “a mere speculation above as to how the EPEW
inconvenience or alteration of job on a wage disparity claim, economic
responsibilities” does not rise to the damages will equal the difference be- will be construed and enforced by the
tween the amount that the employer courts, there are some significant
level of a material adverse action.91 questions as to which we will not even
paid to the employee and the amount
3. Causal Connection that the employee would have received hazard a guess. We raise three of these
Finally, the plaintiff must establish a had there been no violation. In such questions below.
causal connection between the pro- cases, liquidated damages will be in an A. Is There a Role for
tected activity and the retaliatory act(s).92 amount equal to economic damages. 101 Employee Choice?
Again looking to existing caselaw under One unknown is the role of employee
The statute does not set forth how
other statutes, this may be demonstrated choice concerning their benefits and
liquidated damages are to be calculated
by direct or indirect evidence, including
in cases other than pay disparity claims even compensation. The statute is
close temporal proximity.93 Generally, focused on disparities in “wage rates,”
Colorado Trial Lawyers Association Trial Talk April – June 2021 17EMPLOYMENT LAW | Moore & Tumin
and defines wage rates based on the same. Will a director of accounting be have persisted despite several decades
compensation and benefits “received” an appropriate comparator to a director of anti-discrimination legislation.
by employees, not made available to of business development? Potentially: Although in several respects its exact
them. Consider, then, an employee if the test requires only comparable contours will not be known until estab-
who makes no contributions to the levels of responsibility and skill, be- lished by the courts, it seems likely to
employer’s 401(k) plan, and therefore cause both may have comparable levels induce many employers to overhaul
does not receive the 3% match offered of management responsibility, skill, etc. their compensation structures and pro-
by the employer. Is this employee’s This would represent another dramatic motion processes. In fact, this seems
“wage rate” therefore lower than that change in existing law, if employers to be one aim of the law. Only time
of an employee who does contribute, are required to make determinations of will tell what extent the statute will
giving rise to a potentially actionable such rough equivalence and pay succeed in reducing the pay gap, but it
disparity? Under a strict reading of the comparably across positions with very almost certainly will give rise to a
statute, the answer appears to be yes. different functional responsibilities. great many newly viable claims for
The same issue would arise where an pay discrimination. sss
To a lesser extent, questions may
employee chooses not to take advan-
arise as to what constitutes a “different” Brian T. Moore, a partner with Jester Gib-
tage of a free monthly RTD pass
gender identity. Will a transgender man son & Moore, LLP, has been practicing
offered by their employer.
have an actionable claim if he is employment law in Colorado for over
The same question arises on a larger compensated less, for the same job, twenty years. He focuses on representing
scale where an employer offers than a cisgender man? Or will in the employees in litigation, but also works
employees a choice of compensation inquiry end at both identifying as men? with employers to help them comply with
structure. Consider a law firm that gen- the ever-changing legal landscape.
erally pays associates primarily on a C. Do Employers Need a “System” Contact him at 303-377-7888 or
salary basis. However, the firm also for Everything?
bmoore@jgllp.com.
offers sufficiently senior associates the The statute defines several of the
option of moving from a salary to a Rachel Tumin joined Jester Gibson &
Permitted Factors by reference to a
structure based on their production and “system;” for example, an employer Moore, LLP, as an associate attorney in
origination of fees. Presumably if one may defend a pay disparity as based on 2020, after clerking for the Hon. Robert L.
associate stays on the salary and the McGahey, Jr., in Colorado’s 2nd Judicial
“a merit system.” This wording may
other moves to the alternative struc- impose a requirement of structure and District. Rachel represents employees
ture, disparities will result in the formality. A small employer may pay and advises employers in employment
compensation actually received. Here strong performers more, but not be able law matters, as well as clients in civil liti-
again, if the two attorneys are of differ- to point to any systematized process for gation generally. Contact her at 303-377-
ent gender identities, a strict reading of determining who gets how much more. 7888 or rtumin@jgllp.com.
the statute appears to give a claim to Will it still be able to defend based on Endnotes:
whichever one winds up receiving a that factor? Does a consistent practice 1
29 U.S.C. § 206(d) (1963).
lower income, even though the disparity suffice or are written policies necessary?
resulted entirely from the choices of
2
S.B. 19-085, at 2 (Colo. 2019), available
Questions like these are likely to be at http://www.leg.colorado.gov/sites/
the employees concerned.
answered piecemeal. Counsel should default/files/2019a_085_signed.pdf.
B. Who Will Count as a Comparator? keep in mind that the legislative history Id.
3
of the EPEW may be as helpful as look- 4
Interpretive Notice & Formal Opinion
The limits of “substantially similar
ing for cases to analogize. (“INFO”) # 9: Equal Pay for Equal Work
work” are likely to be among the first Act, Part 2: Transparency in Pay and
tested. In particular, the statute seems V. Conclusion Opportunities for Promotion and Ad-
to us ambiguous as to whether the test vancement (Dec. 2020), https://cdle.colo
requires only comparable levels of The EPEW represents a dramatic rado.gov/sites/cdle/files/INFO%20%239
skill, responsibility, etc., or whether it expansion of the regulation of employ- _%20Equal%20Pay%20Transparency%2
requires the specific skills and responsi- ment relationships in Colorado, in an 0Rules%20%282021%29.pdf.
bilities involved to be substantially the attempt by our General Assembly to 5
C.R.S. § 8-5-101(9) (2021).
overcome gendered pay disparities that
18 April – June 2021 Trial Talk Colorado Trial Lawyers AssociationMoore & Tumin | EMPLOYMENT LAW
6
C.R.S. § 8-5-102(1) (2021). 46
EPT Rule 4.2.2. 83
C.R.S. § 8-5-102(2) (2021).
7
C.R.S. § 8-5-102(1) (2021). 47
C.R.S. § 8-5-201(2) (2021). 84
Colo. Code R. 7 CCR 1103-8 (“Direct
8
C.R.S. § 8-5-101(8) (2021). 48
INFO #9, supra n. 4, generally. Investigation Rules”) Rule 9.1.
9
C.R.S. § 8-5-102(1); C.R.S. § 24-34- 49
Id. at p.2.
85
C.R.S. § 8-5-102(2)(b)-(c) (2021).
402(1)(a) (2021). 50
Compare EPT Rule 4.3(B) with INFO
86
C.R.S. § 8-5-102(2)(d) (2021).
10
C.R.S. § 8-5-102(1)(a)-(d) (2021). #9, supra n. 4 at p.2. 87
E.g., Purrington v. University of Utah,
11
C.R.S. § 8-5-102(1)(a)(I)-(VI) (2021). 51
INFO #9, supra n. 4 at p.1. 996 F.2d 1025 (10th Cir..1993).
12
C.R.S. § 8-5-102(1)(b) (2021). 52
C.R.S. § 8-5-202.
88
E.g., Burlington Northern and Santa Fe
RR Co. v. White, 548 U.S. 53 (2006).
13
Id. 53
C.R.S. § 8-5-203; EPT Rules, generally.
89
Krauss v. Cath. Health Initiatives Moun-
14
C.R.S. § 8-5-102(2) (2021). 54
C.R.S. § 8-5-203(2)(a) (2021).
tain Region, 66 P.3d 195, 201 (Colo.
15
Id. 55
EPT Rule 3.2.1. App. 2003) (citing Sanchez v. Denver
16
C.R.S. § 8-5-102(2)(e)-(f) (2021). 56
EPT Rule 3.4.2. Public Schools, 164 F.3d 527 (10th
17
C.R.S. § 8-5-102(2)(c) (2021). 57
EPT Rule 3.2.4. Cir.1998)).
18
C.R.S. § 8-5-103(5); C.R.S. § 8-5-104(3) 58
EPT Rule 3.3.
90
U.S. EQUAL EMPLOYMENT OPPORTUNITY
(2021). COMM’N: RETALIATION (2021).
59
EPT Rule 3.5.3(B); C.R.S. § 8-5-
19
C.R.S. § 8-5-103(5) (2021). 203(2)(a), (4).
91
Krauss, 66 P.3d at 201 (Colo. App. 2003).
20
Colo. Code R. 7 1103-13 (“EPT Rules”) 60 C.R.S. § 8-5-203(2)(b)-(c) (2021).
92
E.g., Argo v. Blue Cross & Blue Shield of
Rule 4.2.2. Kansas, Inc., 452 F.3d 1193, 1202 (10th
61
EPT Rule 3.5.3.
Cir. 2006).
21
C.R.S. § 8-5-201(1) (2021). 62
EPT Rule 3.5.3.(A); C.R.S. §§ 8-1-140; 93
E.g., Anderson v. Coors Brewing Co.,
22
EPT Rule 4.2.1. 8-1-141.
181 F.3d 1171, 1179 (10th Cir. 1999).
23
EPT Rule 4.2.1. 63
C.R.S. § 8-5-102(1) (2021). 94
E.g., Vialpando v. Johanns, 619 F. Supp.
24
See C.R.S. § 8-5-201(1) (2021). 64
C.R.S. § 8-5-102(1) (2021). 2d 1107, 1119 (D. Colo. 2008).
25
EPT Rule 4.2.4. 65
See Middlemist v. BDO Seidman, LLP, 95
C.R.S. § 8-5-203(5) (2021).
26
See INFO #9, supra n. 4 at p.3. 958 P.2d 486, 490 (Colo. App. 1997) 96
Id.
(2021).
27
Id. 97
Id.
66
C.R.S. § 8-5-101(9) (2021).
28
EPT Rule 4.2; EPT Rule 4.2.3; C.R.S. § 98
C.R.S. § 8-5-104(2) (2021).
8-5-201(1) (2021).
67
C.R.S. § 8-5-101(9)(a) (2021).
99
C.R.S. § 8-5-104(1) (2021).
29
EPT Rule 4.2.5.
68
C.R.S. § 8-5-101(9)(b) (2021).
100
C.R.S. § 8-5-104(2)(a) (2021).
30
EPT Rule 4.2.5(B).
69
C.R.S. § § 8-5-102(1)(a)-(d) (2021).
101
C.R.S. § 8-5-104(1)(a).
31
EPT Rule 4.2.5(B).
70
C.R.S. § 8-5-102(1)(a) (2021).
102
C.R.S. § 8-5-104(2)(b) (2021).
32
EPT Rule 4.2.5(A).
71
C.R.S. § 8-5-102(1)(b) (2021).
103
C.R.S. § 8-5-104(3) (2021).
33
Id.
72
Sanchez v. Philip Morris Inc., 992 F.2d
244, 247 (10th Cir. 1993)].
104
C.R.S. § 8-5-103(2) (2021).
34
Id.
73
C.R.S. § 8-5-102(1)(c) (2021).
105
Id.
35
Id.
74
C.R.S. § 8-5-102(1)(d) (2021).
106
C.R.S. § 8-5-103(3) (2021).
36
EPT Rule 4.25.(C).
75
C.R.S. § 8-5-104(1)(a) (2021).
107
C.R.S. § 8-5-103(4) (2021).
37
Id.
76
C.R.S. § 8-5-104(1)(b)(I) (2021).
38
EPT Rule 4.3(B).
77
Id.
39
INFO #9, supra n. 4 at p.5.
78
C.R.S. § 8-5-104(1)(b)(II) (2021).
40
EPT Rule 4.1; EPT Rule 4.2.3.
79
C.R.S. § 8-5-104(1)(b)(II) (2021).
41
C.R.S. § 8-5-201(2); EPT Rule 4.1.
80
Id.
42
EPT Rule 4.1.2.
81
See C.R.S. § 8-5-102(2)(a) (2021).
43
EPT Rule 4.1.1(B).
82
E.g., Gunnell v. Utah Valley State Coll.,
44
EPT Rule 4.1.1(C).
152 F.3d 1253, 1262 (10th Cir. 1998).
45
INFO #9, supra n. 4 at p.1.
Colorado Trial Lawyers Association Trial Talk April – June 2021 1920 April – June 2021 Trial Talk Colorado Trial Lawyers Association
Ellis & Gibson| EMPLOYMENT LAW
Colorado’s Healthy Families and
Workplaces Act (“HFWA”)
By Rachel E. Ellis and Michelle R. Gibson
C olorado’s Healthy Families and Workplace Act was
signed by Governor Jared Polis on July 14, 2020. This
bill was a significant victory for Colorado workers. It was
a person who stood in loco parentis to the employee when
the employee was a minor; or (c) a person for whom the
employee is responsible for providing or arranging health-
proposed and implemented during an unprecedented legis- or safety-related care.”3
lative session while Colorado and the nation struggled with
Subsection (c) was a last minute compromise after exten-
the uncertainty of the COVID-19 pandemic. Employees’
ability to take time away from work to care for themselves, sive negotiations and proposals. In the end, recognition
or for loved ones, was suddenly an issue at the forefront of prevailed that in our modern society many individuals love
society. The economy was upended, with some businesses and rely upon chosen family where bonds may be nonbio-
shuttered, resulting in record unemployment rates, and others logical and lack legal recognition.
were unable to keep up with demand due to manpower or
Permissible Reasons for Paid Sick Leave
supply shortages. Frontline workers were hailed as heroes
while simultaneously being forced into frightening working An employee may use paid sick leave under HFWA when
conditions.1 During this time it was impossible to ignore the the employee has a mental or physical illness, injury or health
lack of paid sick leave for service industry and low wage condition that prevents the employee from working; needs to
workers, who are disproportionately women and people of obtain a medical diagnosis, care or treatment of a mental or
color and among those least likely to have access to paid physical illness, injury, or health condition; or needs to ob-
sick time. tain preventative medical care.4 An employee can also take
leave under HFWA when the employee needs to care for a
Though the federal government passed temporary emer-
family member who has a mental or physical illness, injury,
gency paid lead protection for some employees,2 HFWA
or health condition; needs to obtain a medical diagnosis, care,
provided Coloradans with immediate relief and set a new
or treatment of a mental or physical illness, injury, or health
legislative national standard that will ensure all workers in
condition; or needs to obtain preventative medical care.5 An
the state have access to paid sick leave, no matter where they
employee may also use paid sick leave under HFWA if either
are employed, by January 1, 2022. HFWA also includes ad-
the employee or the employee’s family member has been
ditional guidance for future public health emergencies.
the victim of domestic abuse, sexual assault, or harassment
During a whirlwind pandemic legislative session, HFWA and the use of leave is to seek medical attention for the em-
was crafted and enacted to protect employees now and for ployee or employee’s family member to recover from a
the future. Employers and employees must learn to navigate mental or physical illness, injury, or health condition caused
the ins and outs of this law. by the domestic abuse, sexual assault, or harassment; obtain
services from a victim services organization; obtain mental
Benefits to Employees
health or other counseling; seek relocation due to the domes-
Employees can use paid sick leave under HFWA to care tic abuse, sexual assault, or harassment; or seek legal services
for themselves personally, or for a family member. A critical related to the domestic abuse, sexual assault, or harassment.6
aspect of this bill lies in the intentionally inclusive definition
Nothing in the HFWA is intended to prevent an employer’s
of family. Under HFWA, “family member” means: “(a) an policy from being more generous than what is required in
employee’s immediate family member,” meaning a person HFWA. HFWA does not require additional leave if an
who is related by blood, marriage, civil union, or adoption; employer policy provides fully paid time off for both
“(b) a child to whom the employee stands in loco parentis or HFWA and non-HFWA purposes (such as sick time and
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