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Employment Law

Colorado Secure Savings Program: Colorado’s New Retirement Program for Everyone

Colorado Secure Savings Program: Colorado’s New Retirement Program for Everyone

Amanda Milgrom

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Colorado’s new, but not yet implemented, government-sponsored retirement program is causing employers consternation. Although the state has not promulgated the formal rules have yet, let’s dive into what we know so far.

In 2023, Colorado will roll out its first government-sponsored retirement program, the Colorado Secure Savings Program (“Program”), established in Senate Bill 20-200. While Colorado employers still have the option of sponsoring their own retirement plan, they must enroll in the Program if they choose not to do so. The Program was founded based on years of research conducted by the Colorado Secure Savings Board in the Office of State Treasurer, who found that a state-facilitated automatic enrollment individual retirement account program would be the best option for Coloradans.. In response to these findings, the Program was created. It will be administered at no cost to employers, and the retirement accounts will be funded by employee wages.

To be eligible for the Program, an employee must be 18 years or older, have been employed by a Colorado employer for at least 180 days, and earn taxable wages in Colorado. Employees will be enrolled automatically in the Program, but they will have the choice to opt out. The default rate to be withheld from each paycheck is 5%, with an auto escalation each year. An employee can adjust that percentage as they desire.

The Program, at least at first, will only apply to businesses with 5 or more employees during any calendar year; have been in business for at least two years; and not offered a qualified retirement plan in the preceding two years.

Employers can face noncompliance, such as failure to enroll eligible employees, of $100/eligible employee per year (up to max of $5,000 annually).

Self-employed individuals and 1099 contractors are also eligible to participate in the Program. As more becomes known about the Program, we encourage you to connect with us if you have any questions about what these developments mean for you or need help securing your retirement plan.

ABOUT THE AUTHOR

PARTNER

Amanda Milgrom represents individuals and businesses of all sizes in various litigation matters regarding employment, intellectual property, and business disputes. She practices employment law, representing employees in discrimination lawsuits and counseling employers on best practices, drafting employee handbooks, and putting together suites of employment contracts.

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Business & Corporate Law

The Small Business Reorganization Act and Its Prolonged Adoption Through June of 2024

Chapter 11 bankruptcy code generally provides businesses with avenues and protections to reorganize and restructure obligations. This form of bankruptcy is very often more favorable than chapter 7 bankruptcy because it allows business owners to stay in the driver’s seat while attempting to negotiate a plan that complies with the bankruptcy code. In contrast, filing a chapter 7 petition results in full relinquishment of control of the business and the appointment of a third-party trustee whose primary obligation to is to liquidate estate assets for the benefit of unsecured creditors.

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Business & Corporate Law

Beneficial Ownership Disclosure: New Reporting Requirements for Small Businesses

On September 30, 2022, the U.S. Treasury’s Financial Crimes Enforcement Network (FinCEN) issued its highly anticipated Final Rule establishing a beneficial ownership information (BOI) reporting requirement under the Corporate Transparency Act (CTA) of 2019. These rules significantly change the obligations of business entities to disclose previously private information regarding the ownership and control of these entities. The primary purpose of the CTA, enacted as part of the Anti-Money Laundering Act of 2020 is to protect the US financial system from being used for illicit purposes, including preventing corrupt actors, terrorists, and criminals from hiding assets in anonymous shell companies. Background for this rule was addressed in prior blog posts including The Corporate Transparency Act (1/31/22) and FinCEN and Real Estate (8/2/22).

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Miscellaneous

When Shares are Not Cares

As attorneys representing startups, Milgrom & Daskam knows that early-stage businesses often have many needs and not much capital to meet them. This often results in startups bartering for services using whatever currency they have. Sometimes this results in interesting exchanges (two hundred pounds of Valencia oranges in exchange for a logo design being our personal benchmark); more often it results in founders giving away the most freely available form of credit they have—equity in their company.

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Employment Law

Workplace Accommodations for Nursing Mothers

Workplace Accommodations for Nursing Mothers

Lindsey Brown

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New mothers who remain in the workforce often continue breastfeeding well beyond the time they return to their jobs. However, returning to work can present challenges to nursing mothers. Currently, twenty-eight states have laws related to supporting nursing women at work, and Colorado is among them.

Colorado’s Workplace Accommodations for Nursing Mothers Act (or “WANMA”, codified at C.R.S. section 8-13.5-104) requires all employers (regardless of size) to provide accommodations for lactating mothers who wish to express breastmilk at work. This law states that employers must either allow an employee to use a paid break and/or mealtime, or provide reasonable unpaid break time, or both, each day to express breast milk for their nursing child.

The law also requires employers to make reasonable efforts to provide a private location (not a bathroom stall) close to the employee’s work area where the employee can express breastmilk. The space should be private and free from intrusions by coworkers or the public.[1] Ideally, the space should also include comfortable seating, electrical outlets, a small refrigerator, and a sink with running water and cleaning supplies, although these conveniences are not specifically required.   

Colorado law also prohibits employers from discriminating or penalizing employees who continue to breastfeed while returning to work. Employees who experience negative feedback from their employers after taking advantage of these accommodations may have a claim under WANMA. However, Colorado law requires the employee and employer to engage in non-binding mediation before pursing litigation.

The protections under WANMA apply for two years from the child’s date of birth. This aligns with the current recommendation of the American Academy of Pediatrics, which recommends mothers breastfeed their infants for 2 years, which doubles the prior recommendation of 1 year.

An employer can comply with this law by making reasonable efforts to accommodate the needs of an employee in these circumstances. But what is the definition of “reasonable efforts”? According to the Colorado Department of Labor and Employment (the “CDLE”), reasonable efforts “means any effort that would not impose an undue hardship on the operation of the employer’s business.” The CDLE describes undue hardship as “any action that requires significant difficulty or expense when considered in relation to factors such as the size of the business, the financial resources of the business, or the nature and structure of its operation, including consideration of the special circumstances of public safety.”[2]

Since its relatively recent passage in 2016, Colorado courts have adjudicated very few cases which focus on WANMA. However, a Judge in the United States District Court for the District of Colorado recently found that Frontier Airlines providing a single lactation room at Denver International Airport for all its employees was insufficient to dismiss the plaintiffs’ claim on a motion to dismiss.[3] Similarly, other states with similar laws have found that providing a single lactation room for hundreds of employees in a large facility was insufficient to comply with state and federal regulations.

If you are an employer seeking to ensure compliance with WANMA, or a nursing mother employee with questions on your rights, Milgrom & Daskam is available to consult and advise.


[1] (See U.S. Department of Labor Wage and Hour Division, Section 7(r) of the Fair Labor Standards Act — Break Time for Nursing Mothers Provision).

[2] https://cdle.colorado.gov/workplace-conditions/workplace-accommodations-for-nursing-mothers#:~:text=The%20Workplace%20Accommodations%20for%20Nursing,child%20for%20up%20to%20two

[3] 2021 WL 4727475

ABOUT THE AUTHOR

PARTNER

Lindsey is a litigation partner and mom to her one-and-a-half-year-old daughter. Lindsey is proud to work at Milgrom & Daskam, where being a parent and an attorney is celebrated and encouraged. Milgrom & Daskam works to support its working parents by fostering dialogue and understanding.

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Copyright Law

Should You Seek Foreign Intellectual Property Protection?

If you plan to conduct business abroad or have an online business that reaches customers abroad, you should consider seeking international intellectual property protection. Intellectual property protection is often limited to the country where you conduct business and/or where you file for protection with the respective foreign intellectual property office. For example, a U.S. trademark registration will not protect you against trademark disputes that arise in other countries. As another example, a U.S. patent prevents others from making, using, selling, offering for sale, and importing your patented invention in the U.S., but does not prevent others from doing the same in other countries.

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Categories
Employment Law

Two New Colorado Laws Affecting Employers in August and October 2022

Two New Colorado Laws Affecting Employers in August and October 2022

Jason Fisher

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Two new laws are set to take effect in the coming months that will require employees to examine their current practices and make changes to bring themselves into compliance.

House Bill 22-1317, taking effect in August 2022, substantially alters how non-competition agreements can be structured with Colorado employees and the Colorado Secure Savings Program, which will apply beginning in October 2022, requires employers to enroll in a state-run workplace retirement plan or provide their own.

House Bill 22-1317 – August 2022

Currently, Colorado law permits non-competition agreements with limited duration and geographic scope in several circumstances including for the protection of trade secrets and for executive or management personnel. HB 22-1317 removes these permitted exceptions and replaces them with only one circumstance: highly compensated employees (meaning those making $101,250 per year or more) for the protection of trade secrets provided the restriction not to compete is no broader than reasonably necessary to protect trade secrets. Customer non-solicitation agreements will be similarly limited to only those employees making at least 60% of the highly compensated threshold ($60,750 per year) and only as is reasonably necessary for the protection of trade secrets. These salary thresholds must be met both at the time the agreement was entered as well as at the time the agreement is being enforced.

These changes are not retroactive and so only apply to non-competition and non-solicitation agreements entered into after the effective date. Further, HB 22-1317 does not change the existing exceptions for non-competition agreements relating to the sale of a business or the recovery of educational and training expenses though the amendment does clarify what expenses are recoverable.

HB 22-1317 requires employers to provide a separate, written notice of any non-competition covenants and have such notice signed by the employee. In addition to being void, a non-competition agreement which does not satisfy the requirements of HB 22-1317 could make the employer liable for actual damages, reasonable costs, attorneys’ fees, and statutory penalties of up to $5,000 per employee. To avoid these damages, Colorado employees need to examine their current practices to avoid running afoul of the increasing restrictions on non-competition agreements.

Secure Savings Program – October 2022

With the launch of the Secure Savings Program, Colorado is joining fourteen other states in requiring employers provide a workplace retirement savings plan. The pilot program launches in October 2022 and will apply to all Colorado employers with five or more employees who have been in business for two or more years starting January 1, 2023.

Colorado employers who do not have a qualifying plan will be required to participate in the state-run program and offer enrollment to their employees and facilitate payroll deductions. Once enrolled, employees will be opted into a default savings rate of five percent of their gross pay. Employees will be able to change their contribution amount or opt out if desired.

Penalties for non-compliance can be up to $100 per employee per year increasing up to $5,000 per employee per year if non-compliance is ongoing. However, employers are provided one year from the effective date to bring themselves into compliance. Small businesses who have not previously considered a workplace retirement plan should begin considering the options available to them and whether an employer sponsored plan or the state-run program will better fit their organization.

ABOUT THE AUTHOR

ASSOCIATE

Jason focuses his practice on corporate governance, commercial finance, commercial contracts, and employment law. He advises clients on all aspects of general corporate matters and strategic business decisions including organization structure, operating/shareholder agreements, and private debt and equity offerings.

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Employment Law

Workplace Accommodations for Nursing Mothers

Many women choose to breastfeed their newborns, as the benefits of nursing are well-established. However, returning to work can present challenges to nursing mothers. Currently, twenty-eight states have laws related to supporting nursing women at work, and Colorado is among them.

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Real Estate Law

FinCEN and Real Estate: Additional Disclosure Requirements May Be On the Horizon for Real Estate Transactions

As part of the anti-money laundering regime under the Bank Secrecy Act of 1970 (the “BSA”), in late 2021, the Financial Crimes Enforcement Network (“FinCEN”) division of the Department of the Treasury issued an advanced notice of proposed rulemaking (“ANPRM”) seeking to address potential money laundering through real estate transactions. The comment period for the ANPRM closed on February 21, 2022. This ANPRM comes closely after the notice of proposed rulemaking related to the implementation of the Corporate Transparency Act (the “CTA”), which you can read more about here. Both the CTA and the proposed regulations under the ANPRM would require significant levels of disclosure regarding the beneficial ownership of companies and real estate in non-financed real estate transactions. These measures aim to reduce money laundering, and assets held by undisclosed foreign investors. It is estimated that between 2015 and 2020, at least $2.3 billion was laundered through U.S. real estate, though the actual figure is likely much higher Accordingly, both FinCEN and Congress are trying to limit the number of real estate transactions used to launder money.

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Categories
Employment Law

Can Vaccination Requirements be Enforced in the Workplace?

Can Vaccination Requirements be Enforced in the Workplace?

Amanda Milgrom
Amanda Milgrom

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As COVID-19 continues to rage across the country, the question of vaccines – and whether they can be imposed on an individual or not – is a hotly debated topic. Folks have strong opinions on both sides of the discussion. Some stand for individual liberties, arguing the individual’s choice is more important. Others argue for the collective, contending that one person’s liberty should not come at the expense of exposing the group. As an employment lawyer, I get a lot of questions from my clients asking whether they can force their employees to get the COVID-19 vaccine. As we’ve written about in prior blog posts, the answer is a qualified yes.

Another way to analyze the question of imposing vaccine mandates is to ask: what would the Supreme Court do? Notably, the Supreme Court was forced to confront this issue back in 1905 during the smallpox epidemic. In Jacobson v. Massachusetts, 197 U.S. 11 (1905), the Supreme Court upheld the authority of states to enforce compulsory vaccination laws. In a majority opinion written by Justice Harlan, the Court concluded that individual liberty is not absolute and is subject to the police power of the state. There, the plaintiff had a bad reaction to a vaccine as a child, and so when the smallpox vaccine was made available, he was fined $5 for not getting it. The case wound its way through the courts until it reached our highest court. There, the Supreme Court declared in a 7-2 ruling that one man’s liberty could not deprive his community of their own liberty (i.e., avoiding disease).

The Plaintiff’s arguments were very similar to those we are hearing today: that the U.S. Constitution protects your right to decide whether to inject a vaccine into your body; that the government does not have the authority to intervene and impose it on you. These challenges have not yet come before a court regarding the COVID vaccine. However, as more employers are imposing a vaccine requirement on their employees, (see Delta Airlines, for example), we can expect that they will. Particularly now that the vaccine has passed full FDA approval. At that time, it will be interesting to see how Courts apply Jacobson and its precedential ruling that a state can impose a vaccine requirement.

While the structure of the Court is quite different today compared to 1905, the Jacobson case offers us significant insight into how a challenge against a vaccine mandate would be handled and can provide employers further assurance that a mandate is permissible under the law.

ABOUT THE AUTHOR

PARTNER & EXECUTIVE DIRECTOR

Amanda Milgrom represents individuals and businesses of all sizes in various litigation matters regarding employment, intellectual property, and business disputes. She practices employment law, representing employees in discrimination lawsuits and counseling employers on best practices, drafting employee handbooks, and putting together suites of employment contracts.

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Work-Life Balance

Not All Who Wander are Lost

When I joined Milgrom & Daskam at the height of COVID, I wasn’t sure what the future would look like for me or this relatively young firm. We were giving up our physical office space in downtown Denver and embarking on a new vision for remote workers. Up until then, much of my professional work life was spent in an office environment, surrounded by colleagues My days were punctuate by in-person meetings–formal, over coffee or meals.in the hallways–and bookended by my daily commute between Denver and Los Angeles which ranged anywhere from just under 30 minutes to more than an hour.

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Estate Planning

Estate Planning for Women: Helping with Control

Let me get it out of the way…the elephant in the room after such a polarizing title. Estate planning is for everyone. Period. Regardless of your age, your marital status, your perceived wealth, or your family size, everyone benefits from preparing for the unexpected, covering essentials, ensuring a lifestyle, and ultimately leaving a legacy with minimal probate and family disputes.

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Miscellaneous

Dude, Diligence?

The due diligence process in the purchase and sale of a business can seem daunting and cumbersome. Any attorney or financial professional worth his or her salt will tell you that conducting adequate diligence is paramount and, despite what will almost certainly feel like an unnecessarily lengthy and intrusive process, serves to mitigate risks for buyers and sellers alike.
This post is meant to provide a very basic framework of the due diligence process in asset deals to assist buyers and sellers in understanding (a) what they are looking at, (b) what they should be looking for, and (c) setting expectations about how the process looks, and where it can go awry. This post should not be relied on as legal advice, and you should always engage counsel and other financial and tax professionals if you are considering buying or selling a business.

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Categories
Employment Law

Colorado’s Equal Pay for Equal Work Act: What Employers Should Know

Colorado’s Equal Pay for Equal Work Act: What Employers Should Know

Jason Fisher

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Colorado’s Equal Pay for Equal Work ACT (“EPEWA”) became effective January 1, 2021, and all companies that employ Coloradans should be aware of its provision—which may require an update to employer practices and policies—to avoid liability.

By enacting EPEWA, the Colorado legislature seeks to prohibit wage discrimination on the basis of sex, which includes gender identity, or on the basis of sex combined with another protected trait such as disability, race, creed, color, national origin, sexual orientation, religion, age, or ancestry. However, EPEWA also contains provisions regulating (1) what information is required in job listings, (2) who is notified of promotional opportunities, and (3) how interviews are conducted regarding wages.

JOB LISTINGS

All job listings open to Colorada applicants must include the following:

  • The hourly or salary compensation offered (a reasonable range is acceptable);
  • A description of all benefits offered such as health, retirement, and paid time off;
  • A description of any other compensation offered such as bonus or equity incentives.

PROMOTIONAL OPPORTUNITIES

Employers must further make a “reasonable effort” to notify current employees of promotional opportunities. Such notice must be in writing and made available on the same day to all employees for whom the opportunity would be a promotion. It must also be given far enough in advance of having the position filled to allow employees a reasonable time to apply.

INTERVIEW QUESTIONS REGARDING PAY

When performing interviews with applicants for new positions or promotional opportunities, employers are prohibited from asking how much the applicant made in their previous position or any other questions regarding the applicant’s wage rate history. Further, if an employer learns of an applicant’s wage rate history, the employer is prohibited from using that information in determining the applicant’s new compensation.

COSTS OF VIOLATIONS

Employers who fail to comply with the provisions of EPEWA leave themselves open to complaints filed by employees with the Colorado Department of Labor and Employment (“CDLE”). CDLE will conduct investigations into alleged violations, and employers will be required to turn over any documentation requested that has bearing on the complaint. If a violation is found, employers can face fines between $500.00 and $10,000.00 for each violation. They may also be required to provide back pay and other damages to employees who were subject to the violating conduct.

The legal ins and outs of employment are constantly changing. Employers should regularly revisit their internal policies and procedures to ensure compliance and update those practices as required. If you are an employer concerned about compliance with EPEWA, please reach out to Milgrom & Daskam for a free consultation.

ABOUT THE AUTHOR

ASSOCIATE

Jason focuses his practice on corporate governance, commercial finance, commercial contracts, and employment law. He advises clients on all aspects of general corporate matters and strategic business decisions including organization structure, operating/shareholder agreements, and private debt and equity offerings.

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Uncategorized

DON’T GET NFTEASED

It’s 2022, and everyone from Snoop Dogg to the cashier at your local supermarket is creating or sponsoring their own NFT project, including many of our Firm’s clients. NFTs (non-fungible tokens) might be a revolutionary way for artists and collectors to control their work, but they are currently a Wild West. Before you get rich quick on this “21st Century Gold Rush”, consider some of the lessons we have learned through our practice.

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Miscellaneous

Running a Business – Remotely

About three years ago, I spent a year living and working remotely from Europe. My experience was unique and interesting enough that I was featured in a series called Digital Nomad Life in Croatia. Of course, many people had been working remotely for years, but it hadn’t really become mainstream. Then came the major disrupter of all life as we knew it – Covid-19. Almost immediately, everyone the world over got a taste of working remotely, or at least of realizing that the world of work could look very different from how we always thought it had to be.

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Real Estate Law

Giving Back to the Community: Getting to Know Sharing Connexion

In January 2017, I joined the board of Sharing Connexion, Inc. (“SCI”), a non-profit organization founded by Ed Anderson, a real estate professional with 30+ years’ experience in acquisition, management, finance, and joint venture. SCI is devoted to sharing its collective real estate expertise with other non-profits and affordable housing organizations to empower their ability and capacity to support their missions. We aid our community partners by maximizing their real estate portfolios through funding assistance for existing facilities ensuring long term sustainability Additionally, we educate on the structure of donated real estate gifts to obtain the most favorable outcomes. SCI is committed to the long-term viability of affordable housing, and has created an impact fund which is used when “at-risk” projects are identified (those where displacement may occur based upon the loss or expiration of an affordable component (e.g. land use or rent restrictions)) to provide options to achieve long-term affordability.

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Categories
Employment Law

How Employers Can Support Working Moms Post-Pandemic

How Employers Can Support Working Moms Post-Pandemic

Lindsey Brown

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Working moms have been especially hard-hit by the stress of pandemic life. When schools and daycares shut down, working moms* were expected to take on the role of teacher, in addition to their other two full-time jobs: mom and employee.

This added stress resulted in women leaving the work forces in droves, at a time when women’s participation had been setting record highs. In September 2020 alone, 865,000 women left the workforce, compared to 216,000 men. Women’s participation in the workforce is now the lowest it’s been in thirty years.

Working moms are expected to always be “on,” which results in exhaustion. A study by FlexJobs reported that 40% of working women were unable to unplug or were working more than they thought they should. This is compounded by the pressure to subvert “maternal bias,” the conscious or unconscious belief that a working mom can’t be effective both in work and in motherhood. It’s no wonder, then, that more women than men report exhaustion, burnout, and pressure to work more.

As life begins to return to normal (at least in the United States), employers are in a unique position to implement the lessons learned during the pandemic and to shape a future that better supports working parents. Given the downward trend in the size of the workforce, it is ultimately in employers’ best interest to support mothers, lest companies continue to lose valued employees.

So what can employers do to support working moms?

1. Build community; support engagement.

Parenting is tough. Parenting in a pandemic is even harder. But as we emerge from a year of isolation and lockdown, we’ve learned that having a supportive community of like-minded women can make all the difference.

Connecting working moms with other working moms—who understand the daily stress of meeting deadlines while also getting kids dropped off on time—really matters. Being able to tap into this community is incredibly valuable.

Whether they are groups of moms within a particular profession (like Denver-based MAMA for attorneys) or organized around motherhood generally (like the mama’hood), support systems for working moms are there, but moms may not know they exist or may be unsure of how to get involved. Companies can help by connecting their employees with community groups, and they can support participation and leadership within those groups. For example, employers can offer to cover membership fees or dues and can allow flexibility for parents to attend group events or classes.

2. Money matters.

Childcare costs are continuing to rise. For many families, monthly childcare costs equal or exceed their monthly mortgage. Employers can offer stipends to help cover the cost of childcare. Additionally, companies could offer subscriptions to services like TULA (a Denver-based, on-request personal assistant service), grocery or meal-kit delivery, or even house-cleaning services—anything to help ease the daily, mile-long checklist of working moms.

3. Continue flexible schedules, including time off.

A silver lining of the pandemic is that many businesses learned that their employees could succeed while working remotely or with flexible hours and could still maintain pre-pandemic productivity.

Employers should continue fostering a sense of adaptability and flexibility. Companies can implement parent-friendly scheduling policies and cultivate a culture where it’s encouraged and expected that these will be used. Offering a flexible schedule and then penalizing an employee who utilizes that option is disingenuous and undercuts the relationship between employer and employee.

Studies show a compressed work week or shorter workday can reduce burnout, but simply offering a flexible schedule won’t completely cure the problem. While flexible scheduling has allowed many moms to stay in the workforce, it has come at the cost of their well-being. The hours after kids’ bedtimes used to offer a brief reprieve from the daily chaos, but that time is now supposed to be used for catching up on emails and finishing projects, leading to burnout.

Employers can offer part-time or reduced schedules, extra paid time off, or even unpaid leave. Employers should let moms know that it’s acceptable to take time for themselves, and employers should respect those boundaries. Employees who have dedicated time away from work are more productive than those who are “always on.”

4. Most importantly, ask what moms need.

Companies should foster an understanding of the lived experiences of working moms. Having open and honest conversations about the needs and expectations of working parents will allow both employee and employer to succeed. Employees who feel heard and supported are far less likely to quit. Retention and employee satisfaction in turn increases productivity and the company’s bottom line. All employees, not just parents, will benefit from a culture of empathy and open communication.

While working moms have been hurt by the pandemic, employers have the opportunity to set the course for a better future. Employers who enact thoughtful policies that prioritize and support working moms will see the benefits of a culture of trust across the company.

*This piece focuses on women, as our society traditionally assigns the majority of child-rearing responsibilities to moms, either overtly or subconsciously, and because the author is writing from her perspective as a mother. However, the same supports equally apply for parents of all genders, as well as for other primary caregivers.

ABOUT THE AUTHOR

PARTNER

Lindsey is a litigation partner and mom to her one-and-a-half-year-old daughter. Lindsey is proud to work at Milgrom & Daskam, where being a parent and an attorney is celebrated and encouraged. Milgrom & Daskam works to support its working parents by fostering dialogue and understanding.

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Copyright Law

Trademark Symbols and When to Use Them

Given their constant presence in our daily lives, the symbols ® and TM are very familiar to most of us. But what do they actually mean? And as a business owner, how do you know when to use them?
Both symbols refer to U.S. federal protection granted to the logo or phrase. The United States Patent and Trademark Office catalogues all registrations and applications in its database and reviews the database for potentially confusing marks when processing new applications. Registering your mark through their office is the best way to defend your brand from competitors.

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Intellectual Property

Hurdles To Obtaining Patent Protection

A patent is an intellectual property right that grants the owner the right to exclude others from making, using, importing, offering for sale, or selling the patented invention in the United States for a limited period of years. A patent does not grant the owner the right to make, use, import, offer for sale, or sell the patented invention.

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Copyright Law

Copyright Infringement at the 2022 Olympics Illustrates the Broad Scope of Potential Defenders

Businesses, beware! Copyright infringement can happen anywhere, even on the biggest sports stage: the 2022 Beijing Olympics. Two U.S. Olympic figure skaters, Alexa Knierim and Brandon Frazier, were sued last week for copyright infringement by the musical artist, Heavy Young Heathens, for using their song without permission. The lawsuit also names as defendants Comcast Corporation, NBCUniversal Media, LLC, Peacock, USA Network, and U.S. Figure Skating. The lawsuit was filed in California for the skaters’ use of the song, “House of the Rising Sun,” which the musicians allege was used without their permission for the skaters’ short program in the Olympics. Heavy Young Heathens state they have not received any payment for use of the song, causing them “substantial, immediate, and irreparable injury.” Interestingly, one of the damages alleged was that the song’s use in figure skating has forever linked it to that sport, which limits its future use.

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Categories
Employment Law

Navigating Mandatory COVID-19 Vaccination as an Employer

Navigating Mandatory COVID-19 Vaccination as an Employer

Jason Fisher

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According to recent guidance published by the U.S. Equal Employment Opportunity Commission (EEOC), private employers may require employees to receive a COVID-19 vaccination. The EEOC enforces workplace anti-discrimination laws, including the Americans with Disabilities Act (ADA) and the Rehabilitation Act, both of which impact an employer’s ability to require vaccination against COVID-19. In addition, emerging, state-specific regulations will determine employers’ vaccination policies. Prior to enacting a vaccine requirement, employers must understand their legal responsibilities under federal and state law.

The ADA allows an employer to enforce a policy that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” This is the same standard that enables employers to require COVID-19 testing of employees who exhibit symptoms before allowing those employees to enter the workplace, and it is now being applied to enable employers to require vaccinations.

When applying this standard to required vaccinations, the employer must examine whether such a requirement screens out, or tends to screen out, an individual with a disability. For example, persons who are immunocompromised or taking certain medications may be unable to receive the vaccine due to a qualifying disability. If so, the employer must show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 29 C.F.R. 1630.2(r).

A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others in the workplace to the virus.

Even after the employer concludes that there is a direct threat, the employer cannot immediately exclude the employee from the workplace or take any other action. The employer must still determine that there is no way to provide a reasonable accommodation that would eliminate or reduce this risk so that the unvaccinated employee does not pose a direct threat.

Employers must also consider whether any state-specific laws pertain to their vaccine requirements. While not yet in effect, legislation proposed in a number of states would restrict an employer’s ability to require vaccination. Some of this legislation would prohibit employer-required vaccinations outright, while, in other states, the legislation would permit required vaccinations only for employees in healthcare facilities or for those who work with medically vulnerable populations. The proposed legislation in Colorado would impose a broad restriction on employer-required vaccinations by prohibiting employers from taking adverse actions against employees or applicants based on vaccination status.

Employers must be ready to adapt their policies as the range of requirements applicable to mandatory vaccinations expands, and this is an area ripe for employee litigation. It is highly recommended that employers speak with an attorney to determine whether their current or proposed policy complies with federal and state law.

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ABOUT THE AUTHOR

ASSOCIATE

Jason focuses his practice on corporate governance, commercial finance, commercial contracts, and employment law. He advises clients on all aspects of general corporate matters and strategic business decisions including organization structure, operating/shareholder agreements, and private debt and equity offerings.

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Contracts

LLC Member Bankruptcy and Automatic Buy-Out Provisions

When an LLC member claims bankruptcy, or otherwise becomes insolvent, it can pose problems for the LLC and other members. Many operating agreements contain provisions addressing this scenario, which often allow for the other members to immediately purchase the membership interests of the bankrupt or insolvent member. The buy-out process is often automatic, meaning the insolvent member has no choice in the selling of their membership interests. This is a harsh remedy, appropriately reserved for situations where the bankrupt or insolvent member is in serious financial peril.

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Business & Corporate Law

The Corporate Transparency Act: What It Is and What It Means for Your Small Business

On January 1, 2021, as part of the federal Anti-Money Laundering Act (the “AMLA”), Congress enacted the Corporate Transparency Act (the “CTA”) in an effort to increase corporate transparency. The CTA requires certain companies to file information on their businesses, including “beneficial ownership” information, with the Financial Crimes Enforcement Network (“FinCEN”). The impact of the CTA on companies and those who would be required to report information has not been clear. However, on December 7, 2021, FinCEN issued a Notice of Proposed Rulemaking to establish the regulations that would implement the CTA, and provide additional clarity on which businesses would be considered “reporting companies” under the CTA.

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Copyright Law

Important Legal Issues for Buyers and Sellers of NFTs

The rapid spread of interest in non-fungible tokens (“NFTs”) has created a billion-dollar industry as buyers bid to own the latest digital artwork and sellers cash in on the craze. However, for many buyers and sellers the intellectual property laws implicated by NFTs go unnoticed which could have costly repercussions.

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