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.
For the past year, teachers in the Denver public school system have negotiated with administrators over a new bargained agreement covering their employment with little success. As the current CBA reaches expiration on January 18, employees face a strike vote on the following day. If Denver teachers vote to strike it may leave Denver public schools with the choice to close schools temporarily, replace teachers with short term replacements or bargain to give its teachers appropriate compensation. The final negotiation sessions before the strike take place this week ahead of the expiration of the current CBA. The teachers’ union has already informed the Colorado Department of Labor and Employment of its intent to strike, as required by the Colorado Peace Act.
Denver teachers currently receive compensation through a complicated formula of base salary and bonuses. The existing collective bargaining agreement, like many educational CBAs, includes lanes for salary compensation that reward teachers for continued education and tenure in addition to cost of living adjustments. Additionally, Denver teachers receive bonuses based upon several additional factors, such as teaching in underserved areas and school performance. The bonuses are funded from a local tax initiative for this purpose. Any bargained agreement lacking these bonuses will result in losing access to that revenue for teacher compensation. This compensation program is known as ProComp.
The divide between the Denver teachers’ union and Denver Public Schools
The Denver Public School system and the Denver teachers’ union (Denver Classroom Teachers Association) remain at odds over several basic issues. The Denver teachers’ union wants to increase funding for compensation, simply the compensation structure, move more funding into base pay rather than bonuses and create salary lanes making it possible for ambitious teachers to earn $100,000 in compensation. The Denver Public School system, like any employer, wants to add far less to teacher pay and maintain the bonus structure. This represents an extremely common divide in labor law negotiations.
The Denver teachers’ union is not fighting for more pay for the sake of simply increasing member compensation. Denver teachers are underpaid compared to surrounding districts and face higher costs of living to live in the same district where they teach–even with regular cost of living pay adjustments. This has the result of driving successful teachers out of Denver schools and into other surrounding Colorado districts. It also causes many teachers to have to live outside of Denver, increasing their commute and diminishing their ownership of the success of their schools. The lack of financial predictability in pay also makes it harder for teachers to plan appropriately for their financial future.
Denver school administrators talk a good game about wanting to improve these problems but so far fail to put enough of the district’s $1 billion budget towards one of its most important assets. Predictably school officials want to maintain a complex formula based on bonuses because it forces teachers to absorb the consequences of administrative failings by tying their compensation to school success. It also has the effect of reducing overall compensation by preventing teachers from accumulating an increasingly higher salary over time.
These are not hypothetical problems justifying improving Denver teacher pay. Comparisons of compensation structures between Denver and other school districts reflects underpaid Denver teachers. The high turnover of teachers as they flee Denver for more pay is not hypothetical. It is a real and statistically proven problem. High turnover creates several problems for the Denver school district:
- Schools lose institutional knowledge of the students at the school and loses long term bonds with the local community;
- Teachers with the best qualifications are able to find better paying jobs elsewhere, lowering the quality of teachers remaining in the schools;
- Tenure of teachers at Denver schools declines which reduces the level of experience from which younger teachers can learn;
- The Denver district spends more resources recruiting and training teachers which are lost as teachers leave for other districts, making each teacher more expensive despite not increasing compensation; and
- Teachers have less incentive to invest personally in the performance of the school when they expect to leave in a few years for another district.
Why Denver teachers should strike if Denver Public Schools cannot agree to a fair negotiation package
Denver teachers deserve a fair compensation structure for their work that reflects their value to the community. If teachers are expected to be professionals working in a major city then they should be appropriately compensated as such. Denver school administrators should treat the investment of public resources into recruiting and training teachers as an important investment in the city. A compensation structure that treats teachers as fungible and a burden to the city does not improve Denver schools.
Teachers in Denver should strike if a fair agreement cannot be reached. Denver school officials will feel no pressure to move the terms of their proposal as long as they feel teachers will eventually cave. A labor strike will put school officials on a clock to figure out how to deal with the problem or face a school district without teachers. It will also add publicity to the dispute and motivate parents to push the district towards finding a solution. Teachers around the country face similar problems (including the extremely similar situation currently in Los Angeles). Each union that strikes over unfair compensation will put the next district on notice that it needs to deal fairly with the union or face similar consequences.
Predicting twelve months of legal changes, even in labor law or employment law, is a tough game in 2019. We have an unpredictable White House, a recent change to the U.S. Supreme Court and turnover in the U.S. House and Colorado Senate in favor of Democrats. It may simply be too early to tell how 2019 will treat Colorado, if only because we do not even know what bills legislators will submit to the federal and state legislatures. That said, we can look at the changes for 2019 in existing federal and Colorado law and at least set up some basic predictions about how labor and employment law may change for Coloradans this year.
Changes to federal labor law and employment law in 2019
Federal employment law changes are already on the books for the administrative agencies. Executive Order 13658 increases minimum wage for federal contractors to $10.60/hour (or $7.40/hour for tipped employees who suffer the tip credit). Beginning January 14, 2019, 45 C.F.R. § 147.132 and 45 C.F.R. § 147.133 allow certain private employers to opt out of federally required contraceptive coverage if the employer has a sincere moral or religious objection to covering contraceptives on the employer’s health insurance plan.
Additionally, the EEOC published new rules on wellness program incentives that take effect on the first day of 2019. Previously employers were permitted under EEOC guidance to grant employees up to a 30% discount on health insurance premiums if the employee participated in an employer-sponsored wellness program without violating the Americans with Disabilities Act (ADA) or Genetic Information Nondiscrimination Act (GINA). In late 2018 a federal district court ruled the incentive rules could render a wellness program involuntary and run afoul the ADA and GINA.
Changes under Colorado labor law and employment law for 2019
Colorado state law will also see a significant change. Beginning January 1, 2019, a minimum wage increase goes into effect. In 2016 Amendment 70 to the Colorado Constitution was passed by voters establishing a new minimum wage regime for the state. Each year through 2020 minimum wage increases by a fixed amount. Subsequent years will increase with inflation. The 2019 Colorado minimum wage is $11.10/hourly. (Read here to learn more about the Colorado minimum wage for 2019 and years forward.) Colorado joins twenty-one other states increasing minimum wage above the federal minimum wage in 2019.
What 2019 will likely bring for federal labor law and employment law
Predicting 2019 for labor law and employment law is not necessarily an easy task given the changes in the legislature, Supreme Court and the White House. The interplay between Democratic control of the House and Republican control of the rest of the federal government is already on play with the shutdown. Who knows how that will continue to unfold until the Dems put in motion their legislative agenda for the year. The current administration would surprise few to continue to unwind Obama administration DOL regulations.
Federal shutdown’s effect on labor and employment law
The current federal shutdown is certain to have some effect on federal labor and employment law issues. Although courts remain open through a shutdown, many labor and employment law agencies close, including the EEOC. That can create problems filing administrative complaints for employment discrimination claims, among other administrative remedies. Federal employees in particular who believe they have labor or employment law-related complaints should contact an employment law attorney right away. Do not assume the shutdown of an agency means filing deadlines for complaints are suspended. That is often not the case.
Anti-union activist support
Across the country we should expect to see continued challenges to the validity and activity of public unions. In 2018’s awful Janus decision the Supreme Court trashed public union agency fees and set the tone for anti-union activists that they would find an ally in the current SCOTUS majority.
Sexual harassment lawsuits
2017 and 2018 saw a rise in sexual harassment lawsuits as part of the #metoo movement and Weinstein effect. These lawsuits are likely to continue through 2019 although new high profile cases may wane with the Supreme Court’s 2018 activity. It’s hard to imagine Brett Kavanaugh’s contentious confirmation hearings was not a serious wound to the spreading belief that the #metoo movement was stamping out the acceptability of sexual harassment.
Perhaps more importantly, SCOTUS decided a trio of cases last year affirming the use of class action waivers in employment arbitration agreements. These class action waivers permit employers to push class actions out of litigation into private arbitration forums where they will avoid publicity of the details of the case, not to mention the final outcome. Employers fearing class action sexual harassment lawsuits likely will add these waivers to their arbitration agreements or review existing waiver to ensure complicity with the Supreme Court opinions.
Predictions for Colorado labor and employment law in 2019
Colorado labor law and employment law will likely see changes in 2019 as well, particularly with Democrats obtaining control of both houses of the state legislature and the executive. Every legislative session House Democrats propose pro-employee and pro-labor bills that were generally blocked by the Republican-controlled Colorado Senate. Now that Democrats control both houses they should be able to pass many of these bills. We do not yet know what the legislative agenda will include for the Colorado legislature but we can predict two likely areas of labor and employment law that will appear in 2019.
Colorado minimum wage changes
In addition to the constitutional minimum wage change for 2019 across the state, this may be the year Democrats pass legislation to allow cities to set their own minimum wage. Senate Republicans blocked this frequent proposal but now Dems may get their wish to push through more flexibility across the state. Liberal cities like Denver and Boulder are likely to raise minimum wage to $15/hour if given the opportunity.
Marijuana laws and employment
Colorado has been an important place for the intersection of marijuana legalization and employment, particularly since the 2015 decision in Coats v. Dish Network. Colorado Democrats may push legislation this year to resolve the unfortunate result in Coats by statutorily prohibiting employers from adversely using a marijuana-positive drug test in employment decisions.
There also appears strong momentum behind proposals to erase pre-legalization marijuana possession convictions. Boulder and Denver indicated intent to make these changes through judicial means. There is also a lot of talk among Colorado legislators to enact state-wide legislation erasing these convictions. That could substantially help workers in the job market held back by marijuana possession convictions.
Living wage has been a growing issue in labor politics and economic discussions in this country, particularly as unions and other worker groups began aggressively championing raising minimum wage over the past few years. Living wages are of concern here in Colorado as rent and home prices soared over the past decade. When living costs in Denver and other Colorado cities exceed local wages it prices workers out of their homes. Rising costs partially drove the push to increase Colorado minimum wage; however, minimum wage often fails to provide a living wage for Colorado workers. Today’s post will explore what is considered a living wage in Colorado and some of the legal concerns that arise in the debate.
What is a living wage?
A living wage is the hourly rate an individual must earn to support his or her family when that person is the sole provider and works full time. Living wage is not the same thing as minimum wage. Minimum wage is a minimum amount an employer may pay to an employee covered by the minimum wage law for work. Living wage considers the costs to that family to meet their minimum needs for self-sufficiency where the family lives. These costs change across regions rather than assume equal costs across the board. Note that a living wage is not a calculation of the wage necessary to live comfortably or move up the economic ladder.
Typically economists calculate living wages in light of the size of the family supported by the sole provider. For example, a Colorado employee without a significant other or children needs to earn far less than an employee supporting a family of four. This is for obvious reasons. Feeding four people costs more than one. Therefore, living wage varies not only by location but also by the size of the family supported.
Living wage in Denver, for example, requires a single employee to earn $12.95 which is above the current minimum wage. If that employee supports another adult and two children that number rises to $28.01, almost three times minimum wage. See your local living wage calculated using this calculator from MIT.
Colorado minimum wage vs. living wage
Minimum wage laws began as a way to end sweatshops and require employers to pay a living wage. Generally over time minimum wage laws in the United States failed to keep up with living wage requirements. Federal minimum wage set by the Fair Labor Standards Act is far below the living wage calculated in most parts of the country. Twenty-nine states have state minimum wages higher than federal law, including Colorado. Amendment 70 to the Colorado Constitution set minimum wage on a stair step to 2020 when increases tie to inflation.
Employees earning the Colorado minimum wage may still not reach a living wage. Considerations for calculating living wage include home prices, rent costs, utilities, food, transportation and healthcare. Although these are basic costs they do not include many expenses that Colorado employees may face. Nor do they include other financial considerations like retirement savings or entertainment.
Considerations for Colorado living wage
A living wage is not uniform across Colorado. Basic family expenses vary considerably across the state. For example, rent and home prices in Denver are far more expensive than most rural parts of Colorado. As expenses increase, so too does the living wage required to afford those expenses. Living wage is not always a linear increase with the urban density. For example, the Colorado Springs metro area requires only a slight decrease from the Denver metro area. Generally, however, urban areas are more expensive than rural areas in Colorado.
An important issue in Colorado is that living expenses are increasing at a rapid rate compared to wages. Studies of government data reflect living expenses increased three times as fast as wages. You can easily see how this happened with the explosion of both home and rent costs compared to even the increase in Colorado minimum wage. This is not a Denver problem. Growth in other large Colorado cities like Greeley, Loveland and Pueblo face the same struggles. Urbanization is not the only factor driving higher living costs. Many mountain communities have high living wages due to expensive housing costs, particular around tourist destinations.
A living wage in Colorado
Colorado employees must consider their location and how local cost variance affects their ability to support their families. The size of the family and location are key issues in self-sufficiency. An individual employee in Colorado needs to earn between $10.75 and $13 hourly just to sustain basic living costs. Note that even the lowest cost area of the state is above the Colorado minimum wage. For a family of four the living wage ranges from $24.00 to $29.00 far above the state minimum wage.
Unfortunately two income households do not fare better on minimum wage. In Denver a two income household with no children needs two earners making $10.55 hourly which is still above minimum wage. In lower cost areas a two income household with no children earn a living wage at minimum wage but fall below if they have a child.
This demonstrates how financially precarious life can be for many Colorado families. Lost wages or a lost job can send a family already struggling to meet their basic needs into complete financial collapse.
Legal issues and a living wage in Colorado
Families earning at or below a living wage in Colorado often work jobs at or near minimum wage. They may rely upon working multiple jobs (full or part time) and earning overtime pay. An employer refusing to pay wages earned by employees can have substantial effect on the employees and their families.
Employers who pay non-exempt employees below minimum wage steal from their workers and violate federal and state minimum wage laws. Employees in this situation have rights under federal and state law to recover unpaid wages through administrative or judicial means.
The same happens when employers fail to pay overtime pay owed to non-exempt employees. Employees earn overtime pay under federal and state wage laws. This is a higher rate of pay than minimum wage or the employee’s regular rate of pay. Employees can recover unpaid overtime pay through Colorado administrative procedures or in court.
Employers also sometimes fail to pay wages at all. Some ways employers fail to pay wages owed include:
- Not issuing paychecks at all;
- Failure to pay a final paycheck;
- Shifting hours from one workweek to another to turn overtime hours into regular pay hours;
- Removing hours from timesheets;
- Requiring employees to work off the clock during lunches or before/after shifts;
- Deducting hours or pay for impermissible deductions.
If your employer failed to pay some or all of your wages then you have rights to recover unpaid wages and other relief under federal and state wage laws. These laws may allow you to recover liquidated damages doubling the amount of unpaid wages, out of pocket losses caused by the failure to pay wages, attorney’s fees and court costs.
Additionally, your employer may not retaliate against you for complaining about or reporting unpaid wages. If your employer terminates you or takes other legal action for complaining about unpaid wages or reporting unpaid wages to a government agency then you have rights to recover for lost wages and other harm.
If you believe any of these unlawful acts occurred to you then you should talk to an unpaid wage lawyer in Colorado right away. An employment lawyer can advise you on your rights and how to proceed to receive the wages you earned. Speak to an unpaid wage lawyer as soon as possible. Many wage claims have short periods that require you to act to preserve your claim. The longer you wait to talk to a lawyer the more you risk not receiving the wages you earned.
Colorado made news in 2015 when the lawsuit involving Dish Network firing an employee for marijuana use was upheld by the Colorado Supreme Court. In 2012 Dish Network fired Brandon Coats, a paralyzed medical marijuana patient, for failing a drug test. He filed a lawsuit under Colorado Revised Statutes 24-34-402.5. The Colorado Supreme Court held the language of the statute prohibiting employers from terminating employees for engaging in lawful activity did not apply to conduct unlawful under federal law. Denver NORML is pushing for legislation to amend C.R.S. 24-34-402.5 to protect employees from termination for off-premises marijuana use.
Coats v. Dish Network
In Coats v. Dish Network the Colorado Supreme Court considered whether C.R.S. 24-34-402.5 protects activity lawful under state law but not federal law. This statute generally prohibits employers from firing or otherwise taking an adverse employment action against the employee on the basis of lawful activity during off-work hours. Under the statute employees can still be terminated for lawful activity during work hours. Coats argued through his attorney that Colorado had legalized his medical marijuana therefore his use was lawful. The Colorado Supreme Court took the opposite position holding that the statute did not prevent employers from taking action against an employee for activity that was unlawful under federal law.
Proposed legislation to change the outcome in future marijuana employment cases
Denver NORML proposes legislation that extends Colorado’s Unfair Employment Practices statute (C.R.S. 24-34-402.5) to protect employees from adverse employment acts by the employer for using marijuana off work hours or from testing positive for marijuana in a drug test. The proposed legislation will still allow employers to take action against an employee who uses marijuana at work or is under the influence of the drug at work. The advocacy organization will begin lobbying for the legislation this winter. The proposed statute is sure to find opposition from the business community in the state who expect a high degree of servitude from their employees. This proposed statute is similar to a law already enacted in Maine for the same purpose.
Contacting a Denver employment lawyer
If you believe your employer took adverse employment action against you on the basis of off duty activity then you should talk to a Denver employment lawyer right away. Employees in Colorado are generally protected from termination and other adverse employment acts on the basis of off-duty activities. Although for now partaking in marijuana is not protected by the Colorado Revised Statutes, it will likely only be a matter of time before Colorado employment law changes to align with the state’s legalization. State or federal law may provide other claims related to your off-duty activities. Contact a Denver employment lawyer to discuss your situation.
Employees in Denver and other parts of Colorado enjoy protection under federal, state and local laws. Employees enjoy protections under wage laws, labor organizing laws, anti-employment discrimination laws, worker safety laws, benefit plan laws, worker’s compensation, contract law, medical leave laws and a variety of other statutes and regulations. On several areas of labor and employment law, an employee’s claim may fall under both federal and state law. Colorado employment lawyers understand the fit between these laws and how to best represent their clients claims. Filing claims under federal or state law can dictate what courts a worker can enter. Which court hears an employee’s case may affect the available remedies, the available jury pool and other factors that affect the worker’s probability of a successful claim.
Colorado Revised Statutes Title 8: Labor and Industry
Most Colorado labor and employment laws exist within Colorado Revised Statutes title 8. This includes wage and hour laws, workers compensation and the Colorado unemployment benefits system. Like most states, the wage and hour sections of the Colorado Revised Statutes contains some provisions that mirror federal wage and hour laws but also includes provisions expanding upon federal law. The Colorado Revised Statutes provides greater specification on the timing and method of wage payments, such as payroll deductions, pay dates, pay frequency and payment of wages after termination. Workers compensation and unemployment benefits are solely state law issues.
Colorado Revised Statutes Title 24: Government
Title 24, Article 34 of the Colorado Revised Statutes (C.R.S. 24-34-401 et seq) includes the Colorado state law prohibiting employment discrimination. Title 24 of the Colorado Revised Statutes makes it unlawful for an employer, employment agency, or labor union to discriminate on the basis of:
- National origin
- Sexual orientation
- Pregnancy and childbirth
The protected classes of employees under Colorado law closely mirrors federal law with the exception that it specifically prohibits sexual orientation. Currently federal courts hold that sexual orientation is not prohibited by Title VII of the Civil Rights Act or any other federal anti-discrimination law. Colorado law closely follows the meanings and usage of reasonable accommodations, harassment and retaliation related to employment discrimination.
Additional protections for employees under Title 24
This title of the Colorado Revised Statutes also prohibits employers from discharging employees for off premises work activity unless that activity is closely related to a bona fide occupational requirement or the activity would create a conflict of interest for the employer.
Additionally, this section of the Colorado Revised Statutes protects the right to three days of leave for the victim of domestic abuse or sexual assault for medical care, seeking legal help, or protecting himself or herself from further abuse.
A claim under Title 24 of the Colorado Revised Statutes must be filed with the Colorado Civil Rights Commission within six months. The exception is for claims that the employer discharged the employee for off work activity. Those claims may be filed in district court within the applicable limitations period for filing a civil suit. (Galvan v. SPANISH PEAKS REG. HEALTH CENTER, 98 P.3d 949 (Colo. Ct. App. 2004))
Colorado labor and employment laws and employment lawyers
This post is just the tip of the iceberg of the labor and employment laws that cover Colorado workers. If you believe your employer mistreated you in hiring decisions, termination decisions, or during your employment then you should speak with employment lawyers in Denver, Colorado right away about your concerns. Many claims have brief limitations periods that require employees to take action to preserve claims.