The Rocky Mountain Employer

“On February 26, 2026, the Department of Labor (“DOL”) announced a proposed rule (the “Proposed Rule”) that would reinstate a modified version of the 2021 employer-friendly “economic reality” test used to determine whether a worker is properly classified as an independent contractor or employee under the Fair Labor Standards Act (“FLSA”), the Family and Medical Leave Act, and the Migrant and Seasonal Agricultural Worker Protection Act.”

“A new state-level workplace safety enforcement system designed to fill potential gaps in the federal Occupational Safety and Health Administration’s (“OSHA”) enforcement of its regulations contained in House Bill 26-1054 (the “Bill”), is being heard on February 26, 2026, in the Colorado House Business Affairs and Labor Committee. While the Bill mirrors parts of the federal Occupational Safety and Health Act (“OSH Act”), it goes much further, especially by establishing its own workplace standards; allowing private rights of action to enforce safety standards; expanding penalties for workplace safety violations; and giving the Colorado Division of Labor Standards and Statistics (the “Division”) broad rulemaking authority.”

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“On February 6, 2026, the United States District Court for the District of Colorado dismissed a King Soopers employee’s (acting on behalf of a class) case, pursuant to the non-statutory labor exemption, alleging The Kroger Company (“Kroger”) and Albertsons Companies, Inc. (“Albertsons”) unlawfully colluded during Kroger and United Food and Commercial Workers Local 7’s (the “Union’s”) negotiations of the renewal of their collective bargaining agreement.  Specifically, the employee alleged Albertsons agreed with Kroger not to hire any of Kroger’s striking workers in an effort to hamper the Union’s bargaining strength with Kroger in violation of Colorado’s antitrust statute (the “Agreement”). However, the Court determined that the Agreement was exempt from antitrust scrutiny and dismissed the case.”

“Recent federal developments have prompted renewed attention to disparate impact liability in the context of reductions in force (“RIF”). In April of 2025, the Trump administration issued  Executive Order 14281 directing federal agencies, including the U.S. Equal Employment Opportunity Commission (“EEOC”), to de-prioritize disparate impact as a litigation and enforcement tool. Because disparate impact claims frequently arise from workforce reductions, the administration’s announcement has drawn attention to whether this shift meaningfully alters employer risk.”

“On February 1, 2026, two key rules from the Colorado Department of Labor and Employment (“CDLE”) took effect: The Colorado Overtime and Minimum Pay Standards (“COMPS”) Order #40 and the 2026 Publication and Yearly Calculation of Adjusted Labor Compensation (“PAY CALC”) Order. Together, these rules set Colorado’s minimum wage and pay standards for the year. “

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Earlier this month, the U.S. Department of Labor’s Wage and Hour Division (“DOL”) issued Opinion Letter FLSA2026-2 (“Opinion Letter”), providing additional guidance on when bonus payments must be included in an employee’s “regular rate of pay” for purposes of calculating overtime under the Fair Labor Standards Act (“FLSA”).

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On January 5, 2026, the U.S. Department of Labor (“DOL”) issued an opinion letter explaining that leave taken under the Family and Medical Leave Act (“FMLA”) to attend medical appointments may include the time spent traveling to and from the appointment. This is true even when an employee’s medical certification from a health care provider confirms the need for the appointment but does not address the associated travel time.

“In December 2024, Rocky Mountain Employer examined the Colorado labor movement’s push to eliminate the Colorado Labor Peace Act’s (“LPA”) requirement that employees approve union security agreements through a second election subject to a heightened approval threshold. That effort culminated in the General Assembly’s passage of Senate Bill 25-005 (“SB25-005”) in 2025, which Colorado Governor Jared Polis vetoed. As discussed in a previous Rocky Mountain Employer article analyzing the veto, the Governor’s decision preserved Colorado’s status as a modified right-to-work state, while signaling that renewed legislative efforts were likely. Those efforts have now resumed. At the outset of the 2026 legislative session, Democratic lawmakers have reintroduced House Bill 26-1005, which is substantially similar to the 2025 version, once again placing the LPA’s second-election requirement at the center of Colorado’s labor policy debate.”

“On January 1, 2026, the Colorado Department of Labor and Employment’s Division of Family and Medical Leave Insurance (the “Division”) issued an emergency amendment (the “Amendment”) to its regulations concerning employee and employer rights and responsibilities under Colorado’s Paid Family and Medical Leave Insurance Act and program (“FAMLI”). The Amendment extends the time period to comply with certain tax reporting and withholding requirements issued by the IRS.”

“The National Labor Relations Board (“NLRB” or “Board”) is structured as a five-member body, but the National Labor Relations Act (“NLRA”) requires at least three Senate-confirmed members for the Board to exercise its full authority, including issuing decisions, resolving appeals, and setting binding precedent under federal labor law. For much of 2025, the Board has operated below that three-member quorum, leaving it unable to issue Board-level decisions even as regional offices and enforcement functions have remained active, effectively preventing the Board from carrying out its core adjudicatory role. This dynamic is likely to shift in 2026, as the confirmation of pending nominees would restore the Board’s quorum and allow it to again issue binding decisions and provide long-awaited clarity to employers and employees.”

“As 2026 draws near, a few important statutory and regulatory updates are set to take effect on January 1 that will require Colorado employers to revise policies, payroll configurations, and internal leave administration. While the list is not exhaustive, the changes that are to take effect carry implications for employers navigating parental leave, minimum wages and wage thresholds, and compliance planning in the year ahead.”

“On June 30, 2026, Colorado’s Senate Bill 24-205 (“SB24-205”), also known as the Colorado AI Act, goes into effect. The law requires employers to exercise reasonable care when using high-risk AI systems to prevent algorithmic discrimination. SB24-205 authorizes the Colorado Attorney General (“AG”) to treat violations as deceptive trade practices and to impose civil penalties for violations.”

“On November 6, 2025, Republican members of the Senate Committee on Health, Education, Labor and Pensions (“HELP”) introduced a package of bills[1] that, if passed, would significantly favor employers by revising the National Labor Relations Act (“NLRA”) and related statutes. The bills’ purported aim is to reshape union elections, deter frivolous unfair labor practice (“ULP”) charges, increase union financial transparency, and limit how unions use worker data. The most pertinent bills in the package affecting employers are discussed below.”

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“In Russell v. Driscoll, a case alleging sex discrimination in violation of Title VII, Paul Russell (“Russell”) argued to the Tenth Circuit Court of Appeals that following the U.S. Supreme Court’s decision in Muldrow v. City of St. Louis, claims alleging a hostile work environment are no longer required to show that the harm resulting from discriminatory conduct was so “severe or pervasive” that it altered the terms, conditions, or privileges of employment. Although an internal investigation into Russell’s workplace at the Irwin Army Community Hospital at Fort Riley in Kansas concluded his supervisor had discriminated based on sex, the district court dismissed his claim because it found that the discriminatory conduct was not sufficiently severe or pervasive to meet the legal standard of an actionable hostile work environment claim. Ultimately, the Tenth Circuit declined to adopt Russell’s argument, leaving the standard in place for hostile environment claims.”

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‍ ‍“In Snyder v. Beam Technologies, Inc., the Tenth Circuit clarified the distinction between “ownership” and “possession” under federal and state trade secret laws. The Court held that while only an “owner” of a trade secret may bring a claim under the federal Defend Trade Secrets Act (“DTSA”), the Colorado Uniform Trade Secrets Act (“CUTSA”) may allow a lawful “possessor” of a trade secret to bring suit. Even so, the Court affirmed that a plaintiff must still demonstrate that reasonable measures were taken to maintain secrecy—an element that Plaintiff, John Snyder (“Snyder”) failed to establish.”

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“Douglas County, Colorado (“the County”), has filed a federal Lawsuit (the “Lawsuit”) challenging a 2022 state law that grants county employees the right to unionize and requires counties to remain neutral during union organization efforts. The case, Board of County Commissioners of Douglas County v. Polis,raises significant constitutional and labor law questions that could shape how governments and potentially private employers nationwide address union organization efforts. The County argues that the law, known as the Colorado Collective Bargaining for County Employees Act (“COBCA”), violates the First Amendment and conflicts with federal labor law. According to the complaint, COBCA not only restricts the speech of local officials but also intrudes into an area that Congress intended to leave open under the National Labor Relations Act (“NLRA”).”

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“On October 21, 2025, the Supreme Court of Colorado heard oral arguments on a single question from the United States District Court for the District of Colorado (the “District Court”) in Moreno v. Circle K Stores, Inc.: Does Colorado law recognize a public policy exception to the at-will employment doctrine that allows an employee to bring a wrongful termination claim in the event the employee is terminated for actions taken in self-defense?  If the Supreme Court answers, “yes,” Colorado employers will need to consider an employee’s right to self-defense when violence arises in the workplace when drafting its workplace policies.”