With the 2019 legislative session here in Colorado behind us it is time to check out how workers performed. The 2018 midterm election ushered in a Democratic majority but a purple state like Colorado is not always the most aggressive state for labor laws and employment laws favoring workers. Many areas of Colorado remain deeply red and antagonistic to employee rights both in specific industries and across the workforce. This year brought a large number of labor law and employment law bills in both the state house and senate, many favoring workers. Not all bills succeeded but overall workers fared well. This earlier post discussed the 2019 proposed labor and employment law bills in greater detail.
Employment discrimination laws proposed for Colorado in 2019
The 2019 legislative session saw some…interesting proposals on employment discrimination as a result of the Supreme Court’s opinion in Masterpiece Cakeshop that generally found the Colorado Civil Rights Commission and the Colorado judiciary wrongly decided whether a business can discriminate on its supposed religious beliefs. Part of the opinion relied upon what the court viewed as an antagonistic view of the Colorado Civil Rights Commission of the shop owner’s religious beliefs. Colorado Republics responded by introducing H.B. 19-1081 which would have made it harder to prove discrimination complaints before the Civil Rights Commission. In short, this bill would require Colorado to finance a legal defense for a business accused of unlawful discrimination and repay the business if it ultimately prevails. Thankfully this ridiculous bill failed.
A second Masterpiece Cakeshop related bill, H.B. 19-1111, would require members of the Colorado Civil Rights Commission to undergo First Amendment training to avoid repeating what the Supreme Court found offensive about the commission’s behavior. Although training on civil rights is not a terrible idea, the purpose of this law was to backdoor a legislative admonishment to the Colorado Civil Rights Commission. This bill also failed.
Non-Masterpiece Cakeshop employment discrimination bills
A few employment discrimination bills unrelated to Masterpiece Cakeshop also made their way to the Colorado legislature.
H.B. 19-1039 proposed making it easier for transgender individuals to obtain government identification documents. While this bill does not directly apply to employment settings it likely will reduce instances of hiring discrimination against transgender workers who present as a different gender from the gender or sex marked on state identification. H.B. 19-1039 passed.
S.B. 19-056 proposed allowing employers to give veterans preference for jobs as long as the veteran is as qualified as other applicants. This bill intended to clarify existing law permitting preferred hiring for veterans by sharpening language prohibiting veteran preference to act as pretext for other forms of discrimination. This bill failed the 2019 Colorado legislative session.
H.B. 19-1025 proposed “banning the box” by limiting inquires into criminal backgrounds on initial applications for many jobs. Many employment discrimination lawyers observe that questions on criminal backgrounds often result in discrimination in hiring practices against people of color as a result of institutional racism in the criminal justice system. H.B. 19-1025 passed.
S.B. 19-085, the Equal Pay for Equal Work Act, proposed an explicit prohibition on pay-based mechanisms of sex discrimination. This Colorado bill creates state remedies similar to the federal Equal Pay Act. The Equal Pay for Equal Work Act also prohibits employers from asking about pay history which has historically allowed prior acts of sex-based pay discrimination to follow employees through their careers. After years of fighting to pass similar bills, S.B. 19-085 succeeded. S.B. 19-085 will go into effect in 2021.
Family and medical leave laws proposed in 2019 Colorado legislative session
The 2019 Colorado legislative session took yet another stab at expanding family and medical leave laws for employees. Colorado workers already enjoy family and medical leave protections under the federal Family and Medical Leave Act and the Colorado Family and Medical Leave Act; however, these laws only protect the right to take unpaid leave for family or medical situations. Many employers allow or require employees to exhaust paid sick time or vacation time but once paid time off runs out the employees must choose between unpaid leave or returning to work prematurely.
H.B. 19-1058 proposed creating family leave savings accounts similar to Health Savings Accounts (HSA) or Flexible Spending Accounts (FSA) for family and medical leave. Like an HSA or FSA it provides benefit to those employees who can afford to set aside funds but does nothing at all for working class employees most financially vulnerable to unpaid leave from work. Employees are already free to save money for unpaid leave. This bill would have done little more than create another tax shelter for wealthier employees. This bill failed.
S.B. 19-188 proposed creating paid family and medical leave as a statutory right. Paid family and medical leave has been proposed several times in Colorado but fails due to strong resistance by business groups and their lobbyists. Eventually the proposed bill set out in the Colorado Senate only created funding and programming to study the creation of a state insurance program to pool the costs of paid family and medical leave. This bill passed. Creating a formal program to study the issue is great but leaves open the door that the eventually analysis will be diluted to worthlessness by business interests.
Wage and hour bills proposed by the Colorado legislature in 2019
Colorado also saw movement on minimum wage and other compensation issues on behalf of employees. The result of four bills proposed in the 2019 legislative session favored employees.
H.B. 19-1210 proposed creating a statutory right for Colorado cities to set their own minimum wages higher than the state’s own minimum wage. One might think such law is needless political pandering by Democrats but that is not the case. Around the country business interests pursue legal avenues to prevent this from happening. They file lawsuits challenging the authority of cities to set higher minimum wages along with statutes prohibiting cities from setting their own minimum wages. Creating a statutory right for cities to enact their own minimum wages higher than the state minimum allows larger metro areas with higher costs of living to set minimum wages matching those costs while not requiring smaller towns across Colorado to follow suit. This bill passed into law but I expect to see judicial challenges to its constitutionality nevertheless.
H.B. 19-1267 proposed making it a felony to fail to pay wages to a worker when the amount of unpaid wages meets or exceeds $2000. Colorado labor and employment law already contains criminal and civil penalties for failure to timely pay wages; however, like in most states these penalties are mild and ineffective at deterring employers from paying employees waged owed. Hopefully raising the stakes will nudge employers to do the right thing and pay wages in full and on time. This bill also passed.
S.B. 19-022 proposed funding a bonus program for teachers who are “highly effective” at their jobs. This Republican bill responded to demands this year for higher teacher pay through typical tactics of wanting workers to fight each other over scraps and make them teach to bonus metrics rather than to the curriculum. Democrats refused to join the bill and as a result it failed.
H.B. 19-1107 proposed providing funding for state programs to provide job training to lower income and unemployed Coloradans. State programs create an alternative for workers to improve job skills and earning potential from expensive college and technical programs. This bill passed.
Labor law bills proposed in the 2019 Colorado legislative session
This year’s legislative session only brought one labor law bill to the floor but it proposed an incredible shift in Colorado labor law. H.B. 19-1101 proposed prohibiting employers from requiring union membership as a condition of employment. Colorado has a unique function under the Colorado Labor Peace Act in which an employer may be required to only employ union workers if a second vote, following the vote for union representation passes, with a supermajority to close the employer from nonunion employees.
Union opponents often criticize closed shops or union shops as destroying a fictitious free labor market and push these types of bills to make it more difficult for unions to provide effective representation in the workplace and weaken their ability to pool resources for that purpose. If employers can always hire nonunion workers then the employer has a reason to hire workers who are unlikely to join the union. That increases the likelihood workers may vote away the union and at a minimum reduces support for the union in the workplace. Thankfully, this bill failed.
Other labor and employment laws proposed in the 2019 Colorado legislative session
A smattering of labor law and employment law bills were proposed in this Colorado legislative session. S.B. 19-018 proposed reducing the driving age to receive a commercial driving license to eighteen. This bill opens job opportunities to younger adults by eliminating a legal barrier to jobs requiring operation of commercial vehicles. This bill passed. H.B. 19-1119 proposed expanding access to records of peace officer internal investigations. While not directly a labor or employment law issue, this bill would indirectly affect the employment record of peace officers in the state. Easier access to negative investigation findings may limit opportunities for affected officers. This bill, however, passed. H.B. 19-1105 proposed permitting nurse practitioners to treat workers compensation patients. This also passed.
H.B. 19-1117 proposed requiring the Colorado Department of Regulatory Affairs to regulate professions in the least restrictive means possible to avoid public harm. While that might sound okay on its face the function of the proposed statute is to create a judicial avenue to challenge any regulatory system and force the government to defend any professional regulation. Typically government regulation need only prove a rational basis; this bill would require DORA to meet a high burden by proving it regulated from the least restrictive means possible and that the purpose of the regulation can only be to avoid public harm. This Republican-led bill failed.
Overall this session advanced the interests of Colorado employees and defeated several bills that would have had broad negative effects for workers. While we could always chase a better result, we should be happy that Democrats took a step forward and fought for employees. The totality of bills passed in this session reflects the Democrats in the legislature and the presence of a more liberal Democrat in the executive than the bland governor he replaced.