Colorado starts 2019’s legislative session with a healthy list of 227 proposed bills, many including provisions affecting the state’s labor laws and employment laws. Today’s post will briefly identify and discuss the major Colorado labor law and employment law changes proposed so far this year. Denver labor law will update as these bills move through the legislature and potentially become law.
Limits On Job Applicant Criminal History Inquiries
HB19-1025 limits an employer’s ability to advertise limits on job openings to applicants with criminal histories and prevents employers from inquiring about criminal histories on initial applications. It does not place these limits when an employer has a duty not to hire people with criminal histories or to conduct criminal background checks. HB19-1025 does not create a private cause of action for violations or create a new class of protected workers under Colorado employment discrimination statutes.
Equal Pay For Equal Work Act
SB19-085 expands Colorado law on sex-based pay discrimination by including statutory prohibitions on several pay mechanisms recently recognized by courts as causes of sex-based pay discrimination under federal and state law. The Equal Pay for Equal Work Act also removes authority to prosecute sex-based pay discrimination claims from the Colorado Department of Labor and Employment and creates a private cause of action in Colorado courts.
Veterans Employment Preference By Private Employer
SB19-056 clarifies protections for employers to discriminate in favor of veterans of the armed forces and National Guard in employment decisions so long as the veteran is as qualified as other employees or applicants for the same position. The “so long as the veteran is as qualified as other employees or applicants for the same position” language is intended to prevent veteran preference from use as pretext for other forms of discrimination.
Bonuses For Highly Effective Teachers
SB19-022 creates a new bonus scheme for public schools and charters to hire and compensate highly effective teachers. Colorado loves bonus programs for its teachers which is at the heart of teachers’ union negotiations here in Denver.
Commercial Motor Vehicle Driver Age
SB19-018 authorizes the Colorado Department of Revenue to create rules lowering the age for a commercial driver’s license from twenty-one to eighteen. The proposed bill does not enlarge CDL rules in Colorado beyond the scope of federal law but will allow eighteen year olds to obtain CDLs and drive commercial vehicles when permitted under federal law.
Peace Officer Internal Investigation Open Records
HB19-1119 expands access to internal investigations of police office duty conduct through an open records request. This proposed Colorado bill is not explicitly a labor law or employment law issue but access to internal investigations may pose problems for police officers through the publicity of the investigation or its results.
Regulation Of Professions And Occupations Reform
HB19-1117 clarifies the factors the Colorado Department of Regulatory Agencies must consider when regulating professions to ensure the state regulates professions in the least restrictive manner necessary to avoid harm to the public. Colorado regulates many professions (including attorneys) for good reason; but it also makes a lot of sense to clarify the purpose and scope of professional regulation to avoid excessive limitations on careers and employment.
Training Requirement For Colorado Civil Rights Commission
HB19-1111 is a responsive bill to the Supreme Court’s decision in the Masterpiece Cakeshop case in which the nation’s highest court held the Colorado Civil Rights Commission violated the owner’s first amendment rights through its supposed anti-religious statements. This bill will require the state to create and present a one hour training program on first amendment rights involved with the work of the Colorado Civil Rights Commission. Members of the commission must attend this training.
Employment Support Job Retention Services Program
HB19-1107 creates an employment support program funded by Colorado to assist unemployed and underemployed workers at or below the poverty threshold to train and obtain jobs. The program will operate through the Colorado Department of Labor and Employment through 2022.
Nurse Practitioner Workers’ Compensation
HB19-1105 permits nurse practitioners with prescriptive authority to obtain the first level of accreditation under the Colorado worker’s compensation law. This is another targeted employment law in the legislature towards a specific set of employees in the state.
Prohibit Discrimination Labor Union Participation
HB19-1011 is a Republican initiative to diminish union participation in the state by prohibiting employers from requiring union membership or payment of union dues as a condition of employment. This is a radical departure from Colorado’s existing labor law law structure under the Colorado Labor Peace Act. The law further authorizes criminal prosecution of employers who require union membership. Despite the word salad title reading like it opposes discrimination of union workers, it does nothing of the sort. This is a right to work law and that is obvious once you look under the hood.
Respondent Rights Discrimination Complaints
HB19-1081 is another response to the Masterpiece Cakeshop decision although in this case a highly politicized bill that seeks to destroy the anti-discrimination functions of the Colorado Civil Rights Commission and our state’s anti-discrimination laws in general. This bill sets out three ridiculous provisions:
- A respondent to a discrimination complaint is entitled to a public defender at any point in the administrative process regardless of indigent status–so that the Colorado public finances defenses of allegedly aggrieved citizens of the state;
- The respondent can automatically move the complaint from the administrative process to litigation if he or she admits to the discrimination but alleges the discriminatory act was motivated by first amendment rights;
- If the respondent ultimately prevails in court then the Commission (meaning Colorado taxpayers) must repay all attorney’s fees and lost business income of the respondent.
This bill completely destroys the intended objectives of anti-discrimination laws to facilitate resolution of discrimination complaints in Colorado and to give individuals a low cost forum to resolve these complaints. For some forms of discrimination there is not a meaningful forum to resolve discrimination complaints other than the Commission’s administrative procedure; however, for employment discrimination this bill only ensures employment lawyers will take their clients’ complaints to the EEOC’s administrative procedure or quickly move into trial.
Income Tax Benefits For Family Leave
HB19-1058 creates a tax advantaged family leave savings account for employees to use for qualified family and medical leave expenses. Permitted expenses for this leave savings account tracks the reasons for protected leave under the Colorado FMLA. (The Colorado FMLA expands upon the reasons for protected leave under the federal FMLA.) HB19-1058 allows employers to make matching contributions to the account and gives employers a tax credit for funding paid leave for leave periods between six and twelve weeks.
Generally this is a great proposition for employees and employers by encouraging and helping employees prepare for family and medical leave. Unfortunately it is not much help to the state’s lowest paid workers who might lack the income to set aside and are most economically vulnerable during a family or medical leave period.
Identity Documents For Transgender Persons
HB19-1039 proposes facilitating the process for transgender persons to obtain a birth certificate with a gender change reflecting the person’s appropriate gender. Under current Colorado law a transgender individual must procure a court order to obtain a gender change on a birth certificate that also changes the person’s legal name and states the person underwent surgical procedures to justify the gender change. The individual only then receives an amended birth certificate.
Under the proposed bill, Colorado transgender persons will no longer need a court order. Instead the new process is administrative and only requires the person to make a written request accompanied with a qualified healthcare provider to certify the person is either intersex or has undergone relevant treatment necessitating a gender change. Colorado must then issue a new birth certificate not an amended birth certificate.
Although not explicitly a labor law or employment law bill, assisting transgender workers in clarifying their legal documents and avoiding discoverable court orders to obtain necessary legal documents may help avoid transgender discrimination in the workplace.
Expected bills not currently on the Colorado legislative schedule
Earlier this month I published an overview of changes to federal and Colorado labor and employment law for 2019 that included some expected subjects for this legislative session. Despite agitation around several labor and employment law-related topics, few made their way to the legislature. For example, there has been much talk about erasing low level marijuana convictions; however, no proposed bill to conduct this state-wide appeared. Local action in Boulder and Denver move in this direction and it may be that broader support will wait to see how these changes positively occur locally first. We also do not see any bills strengthening anti-sexual harassment laws. Nevertheless, there are some good pro-worker bills proposed this year.