(303) 369-3200

Friday, 03 May 2019 10:23

Colorado HR Legislative Update

Written by
Rate this item
(4 votes)

Guest Article by Michele J. Wagner, SHRM-SCP

The Colorado Legislature adjourned its 72nd session May 3, 2019, passing numerous bills affecting Colorado employers and employees. As of this writing, these bills were passed by the Legislature and sent to Governor Polis for signature. Below is a summary of the bills affecting employment and wage practices, including what you need to know and do (or don’t do) as an Employer.

Ban the Box (House Bill 19-1025) – Sent to the Governor 4/29/19

This bill, commonly referred to as “ban the box,” places limits on questions Colorado employers can ask related to an applicant’s criminal history. Here are the details you need to know:

Effective Date: September 1, 2019 for Employers with >11 employees; September 1, 2021 for all CO Employers.

Employer Actions:

  • Don’t advertise that a person with a criminal history may not apply for a position;

  • Don’t include a statement on your employment application stating that a person with a criminal history may not apply;

  • Don’t inquire about criminal history on the initial employment application. You can conduct background checks as needed but it should be separate from the initial employment application process.

Exceptions:

The law allows exceptions where:

  • Federal, state, or local law or regulation prohibits employing a person who has a particular criminal history from being employed in a particular job (e.g. Sex Offender applying for a Care-type position);

  • Employers participating in a program to encourage employment of people with criminal histories; or

  • Instances where the employer is required by law to conduct a criminal history record check for the particular position.

Enforcement:

The Department of Labor may issue warnings and orders of compliance for violations; fines and penalties can be imposed for repeat violators.

Private Right of Action:

The bill does not establish a private right of action, and does not create a protected class under the Colorado Anti-Discrimination Act (“CADA”).


Pay Equity (Senate Bill 19-085) – Sent to Governor 5/13/2019

Senate Bill 19-085 “Equal Pay for Equal Work” prohibits discrimination in wages based on sex for all Colorado employers and permits an aggrieved person to bring civil action in district court to pursue remedies.

Effective Date: January 1, 2021

Employer Actions:

  • Don’t inquire about compensation history of job applicants;

  • Don’t rely on prior wage rates to determine a wage rate;

  • Don’t discriminate or retaliate against a prospective employee for failing to disclose their wage rate history;

  • Don’t discharge or retaliate against an employee for actions by an employee asserting the rights established by the bill against an employer; and,

  • Do announce to employees employment advancement opportunities and job openings and the respective pay range for the openings.

Exceptions:

The bill allows exception provided the employer demonstrates the necessity for wage differential based upon one or more factors: a seniority system; a merit system; a system that measures earnings by quantity or quality of production; the geographic location where the work is performed; education, training, or experience to the extent that they are reasonably related to the work in question; or travel, if the travel is a regular and necessary condition of the work performed.

Enforcement:

The Department of Labor and Employment (Director) enforces wage discrimination complaints and may impose fines of between $500 and $10,000 per violation.

Private Right of Action:

This bill creates a private right of action for employees subjected to pay discrimination or retaliation, including economic damages (the difference in pay), liquidated damages in the amount of the economic damages, equitable relief (such as reinstatement and pay increase), costs, and attorneys’ fees. If the employer proves it acted in good faith, the court need not award liquidated damages. (Keep in mind ignorance does not equal good faith.)


Local Government Minimum Wage (HB19-1210) – sent to Governor – 5/17/19

The bill allows a unit of local government to enact laws establishing a minimum wage within its jurisdiction. Under previous law, local governments were prohibited from establishing minimum wage laws within its jurisdiction.

Effective Date: January 1, 2020 – This Act is subject to petition. If a referendum petition is filed against this act, within the ninety-day period after the final adjournment of the general assembly, it will not take effect unless approved by the people at the general election held in November 2020.


Wage Claim Act Amendments (HB 19-1267) – Third Reading Complete

House Bill 19-1267 imposes penalties for failure to pay wages in connection with implementing recommendations from the Colorado human trafficking council. Under existing law, an employer who willfully refuses to pay a wage claim who is owed wages (wage theft), is guilty of a misdemeanor. This bill defines wage theft as theft, which is a felony when the amount is greater than $2,000. Additionally, the bill removes the exemption from criminal penalties for an employer who is unable to pay wages or compensation because of a chapter 7 bankruptcy action or other court action resulting in the employer having limited control over his or her assets.

Effective Date: January 1, 2020

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

FUTURE FOCUS

This section includes recently passed legislation that results in further study and does not have immediate impacts on business operations. As a small to medium-sized employer, you may be interested in keeping current on these bills as they may have future impacts on your business.

Colorado Secure Savings Plan Board (SB19-173) – sent to Governor – 5/13/19

This bill establishes the Colorado secure savings plan board to study the feasibility of creating the Colorado secure savings plan and other appropriate approaches to increase the amount of retirement savings by Colorado's private sector workers.

The board, which consists of the state treasurer (or designee) and eight (8) governor-appointed trustees, is required to conduct the following four analyses:

A detailed market and financial analysis to determine the financial feasibility and effectiveness of creating a retirement savings plan in the form of an automatic enrollment payroll deduction IRA, to be known as the Colorado secure savings plan. The plan would be designed to promote greater retirement savings for private sector employees in a convenient, low-cost, and portable manner.

  • A detailed market and financial analysis to determine the financial feasibility and effectiveness of a small business marketplace plan to increase the number of Colorado businesses that offer retirement savings plans for their employees. The marketplace plan would be voluntary for both employers and employees, open to all employees and employers with fewer than 100 employees and administered by the department of labor and employment. The bill specifies certain duties of the department of labor and employment in connection with the marketplace plan if it is implemented.

  • An analysis of the effects that greater financial education among Colorado residents would have on increasing their retirement savings; and

  • An analysis of the effects that not increasing Coloradans' retirement savings would have on current and future state and local government expenditures.

If after conducting the analyses, the board finds there are approaches to increasing retirement savings for private sector employees in a convenient, low-cost, and portable manner that are financially feasible and self-sustaining, the board is required to recommend a plan to implement its findings to the governor and the general assembly.


FAMILY Family Medical Leave Insurance Program (Senate Bill 19-188, as amended) – sent to the Governor 5/16/19

On April 24, 2019, the sponsors of Senate Bill 19-188, the Family and Medical Leave Insurance Act (“FAMLI”), proposed amendments changing the bill to a study. The amended bill requires the Governor and General Assembly leaders to appoint a task force by July 1, 2019 to study the program and make recommendations to the Legislature.

The bill creates a study for the implementation of a paid family and medical leave program in the state by:

  • Requiring the department of labor and employment (department) to contract with experts in the field of paid family and medical leave;

  • Requiring the department to make requests for information from third parties that may be willing to administer all or part of a paid family and medical leave program;

  • Creating the family and medical leave implementation task force (task force) responsible for recommending a plan to implement a paid family and medical leave program for the state; and

  • Requiring an actuarial study of the final plan recommended by the task force.

While there will be no paid family medical leave program in Colorado this legislative term, the bill’s sponsors have said they intend to reintroduce it next session

For more information on the above bills, please click here for a link to the Colorado General Assembly page.


Michele J. Wagner, SHRM-SCP, is a freelance writer, speaker and business / HR consultant with over thirty years’ experience working for Fortune 500 firms in the US and UK. Reach her at This email address is being protected from spambots. You need JavaScript enabled to view it..

Read 376 times Last modified on Wednesday, 22 May 2019 14:36