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.
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.
The start of most attorney-client relationships is the consultation. A consultation is not a uniform act across all law firms; they don’t teach how to have a consultation in law school. It is not a special process. It is just an initial meeting between lawyer and prospective client. Law firms treat consultations differently depending upon their intake process for prospective clients and what areas of law they work. The basic role of a consultation for employment lawyers is to understand the client’s situation and see if the law firm can help the client solve his or her problems. Let’s talk in more detail about the role of a consultation and what you might expect during a consultation with a Denver employment lawyer.
The role of a consultation with an employment lawyer
If you have never hired a lawyer to help you with a legal problem then you might be unsure what exactly happens during a consultation. The purposes of a consultation generally include:
- Gathering information about the client and the client’s legal problem;
- Assessing the client’s credibility as a potential client and witness;
- Explaining the attorney’s ability to help solve the legal problem;
- The attorney assessing whether to take the potential client on as a client;
- The potential client assessing whether to hire the attorney;
- The attorney selling legal services to the client;
- (Hopefully) forming an attorney-client relationship.
Some law firms focus more on the information gathering and may investigate or consider the case in more detail before moving forward with forming a business relationship, while others focus more on forming the relationship and then collecting more information later. Many firms do a lot of both processes during a consultation.
Whether the potential client is an employer or employee can affect the direction of the consultation. A Colorado employer might need an employment lawyer to work on an immediate problem or want an employment law specialist on retainer. A lawyer consulting with an employer might need to assess the situation differently. Employees normally seek employment lawyers because there is an immediate situation, such as a termination or unpaid wages, and the lawyer needs to assess whether there is a claim to pursue right now or to help the client prepare in the event the situation worsens. These situations all require probing for different types of information and assessing different courses of action with the potential client.
What to expect in a consultation with a Denver employment lawyer
Law firms in Colorado treat consultations differently depending upon their business model and drive for new clients. Do not expect that consultations with lawyers will all be exactly the same. Remember that employment lawyers use consultations to assess potential clients and their cases, which means they are making business decisions about cases during consultations.
Often people believe a consultation with an attorney is an opportunity to solicit advise or have questions answered about employment law or other topics. This is generally not the case. Typically lawyers do not offer extensive legal advice during a consultation beyond assessing the case and what steps may need to occur for a case to become viable. Providing legal advice to a client is normally part of the attorney-client relationship that forms after both attorney and potential client decide to form a business relationship.
Some employment lawyers may offer varying degrees of legal advice as part of assessing your situation and may be necessary to explain whether a case is worth pursuing. You should not be surprised if you contact a law firm seeking free legal advise or to provide you with explanations of employment law that the firm expects you to pay for their time to provide you legal counsel.
Should I have a paid or a free consultation with an employment lawyer?
Paying for a consultation is not indicative of whether the law firm or employment lawyer is qualified to assist you with your situation. Of course, everybody likes something for free and a free consultation is enticing. It is supposed to be. Law firms generally offer free consultations to entice people to schedule a consultation so the law firm can assess many potential clients and find good cases. By removing cost as a factor, it makes it more convenient for people to schedule a consultation because then the only cost involved to the potential client is time.
Free consultations generally arose from personal injury attorneys who practice in a highly competitive area of law in which a lot of money is often spent on marketing. Giving away a lawyer’s time to free consultations is not really free to the law firm because the lawyer could spend that time working on other cases or even taking paid consultations. The free consultation is a marketing cost to the firm. Due to the breadth of personal injury marketing people have often come to expect free consultations as a part of all legal counsel. This is not true. Most areas of law still use paid consultations. Employment law has become more competitive among law firms and part of that has driven free consultations into this area of law.
However, a paid consultation may be no different in terms of process or information provided. The law firm may charge for a consultation because it believes the potential client receives value in the assessment of the situation which definitely requires the lawyer’s skill and expertise. Law firms charging consultations may want to conserve their lawyers’ time to paid work (like most employers) or may want to limit their consultations to people willing to make an investment in their own case.
Whether you should pay for a consultation is not just a question of cost. You should also consider, among other factors, whether the law firm or its attorneys have the skills and expertise to help you with your situation. Looking at the larger picture, if you have a potential case worth thousands (or more), the initial cost of the consultation may be minimal compared to the overall potential recovery. Also consider that many labor and employment law claims allow plaintiffs to recover attorney’s fees which include the cost of the consultation.
We’re closing in on the end of the first quarter of 2018 which means the Colorado legislature is a little over halfway through its legislative session and the state courts are in full swing for the rest of the year. We’ve already seen a flurry of employment law activity in both the legislature and judiciary with more likely to come. Most employment law watchers have their eyes on the labor law appeals at SCOTUS but Colorado has a lot on the schedule for labor and employment law as well.
Colorado legislative employment law activity
Colorado is among several states where conservative lawmakers pursued bills seeking to undermine labor union presence and minimum wage protections. Thankfully in this state these bills appear dead for the session but other bills live on in the session. Among the labor and employment law legislation introduced this session include:
Immigration status. The House is currently perusing a bill to extend legal work status to undocumented workers in the state that meet specific requirements proving the worker’s history in this country has been positive.
FMLA insurance. Another House bill seeks to introduce an FMLA insurance program for wages. Under the proposed architecture small employee contributions would fund a wage replacement program for Colorado employees who take unpaid family and medical leave. Given the challenges created by the way the Colorado legislature designed its state FMLA statute to sit on top of the federal FMLA passage of this program could create new complications in the state’s family and medical leave law.
Non-compete exception for physicians. Physicians are generally better protected from overreaching non-compete agreements under Colorado law; however, they can be liable for damages caused by terminating the agreement. This Senate bill would create an exemption to damages for physicians to continue to provide care to patients with rare conditions.
Minimum wage waiver. In one of the more ridiculous legislative offerings a House representative offered a bill that would (1) require employers to notify job applicants of the right to negotiate minimum wage and (2) to negotiate a minimum wage less than the Colorado Constitution requires. The House committee quickly laughed at and destroyed this awful legislation.
Right to work bill. Not to limit their terribleness to just one bill, House Republicans introduced a bill to make Colorado a “right to work” state that allows workers to decline representation or membership in a union as a condition of employment. These bills are introduced by the GOP virtually every session but as usual this bill failed to reach a floor vote.
Gig workers are contractors. The Senate passed a bill last week that makes workers who find part-time jobs through online job marketplaces are contractors rather than employees. While many of these workers likely are contractors this bill seems more of a first step in expanding state law to make all workers in the gig economy contractors–surely a move backed by larger players in the field like Uber and Lyft who have been hit with misclassification lawsuits around the country.
Colorado courts employment law activity
If March is any indication how the Colorado Supreme Court feels about employment law it’s not a good sign for employees. This month Colorado’s highest court ruled against employee rights on small but important issues.
Teacher right to hearing before placement on unpaid leave overturned
The Colorado Supreme Court overturned an appeal on public school teacher rights to a hearing before being placed on unpaid leave. The teachers’ union asserted the Teacher Employment, Compensation and Dismissal Act of 1990 (TECDA) required a hearing before a teacher may be placed on unpaid leave. TECDA limits a teacher’s exposure to termination to specific reasons of just cause after a hearing, if the teacher completed the three year probationary period. The teachers’ union argued this created a due process right to a hearing on unpaid leave.
The court disagreed, holding that TECDA does not create a contract between the state and teachers, therefore the teachers lack a property interest in benefits and salary. Without a property interest the teachers do not have a violation of due process rights to assert. The result will be that school districts will obtain greater flexibility to eliminate teachers or force out teachers.
Statute of limitations on unpaid wage claims upon termination under the Colorado Wage Claim Act
In a case with broader implications, the Colorado Supreme Court also interpreted the Colorado Wage Claim Act (CWCA) to reduce the limitations period for claims of wages due upon termination. In Hernandez v. Ray Domenico Farms the court resolved the ambiguity over how far back an employee could seek unpaid wages due upon termination.
The CWCA sets a two year limitations period (extended to three if the violation is willful) for claims brought under the statute. (C.R.S. § 8-4-122.) Among the statutory claims is the right to be paid all due and unpaid wages upon termination. (C.R.S. § 8-4-109). The plaintiffs in this case, along with some Colorado courts, argued the limitations period reset with each instance of unpaid wages so the unpaid wages owed could extend as far back as the beginning of the employment relationship.
The Colorado Supreme Court disagreed, interpreting the CWCA similar to federal interpretations of limitations periods under the Fair Labor Standards Act (FLSA). The court held the limitations period only reaches back two years (or three if willful) before the date of termination. The court noted that the limitations period begins to run with each set of wages due; so it is possible that an employee could pursue a claim under C.R.S. § 8-4-109 as late as three years after the date of termination. The Supreme Court did not clarify this point but it appears to be the intended interpretation of the court’s opinion.
What should we expect for the rest of 2018?
The rest of the year will likely be a mixed bag for employees, particularly with the SCOTUS decisions that will weigh on federal labor law issues. As usual movement on the legislative and judicial fronts will be incremental with judicial decisions drawing narrow interpretations of existing statutes and employer-friendly lawmakers pushing through small changes. Most of these smaller changes receive little attention which allows a long but effective pro-employer shift in labor and employment law.
Denver Labor Law provided this quick slideshow presentation about ways to find an employment lawyer in Colorado and anywhere else. Searching for an employment law attorney can range from a quick search on your phone to mining your personal network for referrals. There is not a “right” way to identify an employment lawyer. It may be necessary to apply several ways described here to find a good list of employment law attorneys. You can schedule consultations with their law firms and select the attorney right for your needs.