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New Colorado Employment LawsEverything Your District Needs to Know
Michelle B. Ferguson, Esq.
Special District Association
Annual Conference
September 20, 2019
HB 19-1025
Colorado Chance to Compete Act
Prohibits employers from asking about an
applicant’s criminal history or representing
that individuals with a criminal history may
not apply
Does it Apply to Special Districts?
▪ Bill defines “Employer”
▪ Definition specifically excludes “state, local
government, or a quasi-governmental
entity or political subdivision of the state”
▪ DOES NOT APPLY
▪ But be mindful of EEOC guidance, which
prohibits inquiries regarding arrests and
other laws governing criminal records
HB 19-1210
Local Government Minimum Wage
Repeals the prohibition on local governments
establishing different minimum wages than
State law
Local Government Minimum Wage
▪ Effective January 1, 2020
▪ Local Government is defined as a City, Home Rule City, Town, Territorial Charter City, City and County, County, or Home Rule County
▪ May adopt higher minimum wages for individuals performing work for 4 or more hours within local government’s boundaries
▪ Does not include time spent by employee solely for the purpose of traveling through the local government’s jurisdiction with no employment-related stops in local jurisdiction except for refueling or employee’s personal meals or errands.
▪ Contiguous counties and municipalities may enter into IGAs for a local minimum wage law within unincorporated portion of each county and municipality.
Additional Details
▪ Maximum increase above State minimum wage each year is $1.75 or 15%, whichever is higher, until new wage reached
▪ Each year, CDLE must conduct report on increases and impact and submit to Senate
▪ Limited to 10% of local governments, unless otherwise authorized by General Assembly
Prior to Adoption
▪ Local government must consult with surrounding local governments and engage stakeholders, including chambers of commerce, small and large businesses, workers, labor unions and community groups
▪ Adoption of any new minimum wage must take effect on January 1st (or other date established for State minimum wage increases)
Enforcement
▪ Establishes private right of action
▪ Fines and penalties
▪ Unpaid wages or overtime
▪ Liquidated damages
▪ Interest
▪ Costs and attorneys fees
▪ Equitable relief
Action Items
▪ Be mindful of any changes in minimum
wage in local government jurisdiction
where:
❑ a) your District is located; or
❑ b) where District employees are
expected to work for 4 or more hours
▪ Pay the higher wage (and overtime
premium, if any) when it applies
HB 19-1267
Anti-Trafficking Law
Establishes that failure to pay wages is
tantamount to theft and therefore
individuals can be convicted of a felony
for doing so.
Does it Apply to Special
Districts?
▪ Bill amends the Colorado Wage Act Title 8, Article 4), which does not apply to special districts
▪ Bill amended definition of employer, but maintained portions of definition, which state Article 4 does not apply to the state or its quasi-municipal corporations (which includes special districts)
▪ DOES NOT APPLY
SB 19-085
Equal Pay for Equal Work Act
Overview:
▪ Effective January 1, 2021
▪ “Employer” defined to include political
subdivisions of the state
▪ Designed to address pay disparity
based on sex in the workplace
▪ Sex defined to include an employee’s
gender identity
▪ Has two components – liability and
administrative requirements
▪ Employer may not discriminate
between employees on the basis of
sex by paying an employee of one sex
a wage rate less than the wage rate
paid to an employee of a different sex
for substantially similar work
(regardless of job title) based on a
composite of skill; effort; and
responsibility.
Exceptions
▪ Shift work differentials
▪ Seniority system
▪ Merit system
▪ A system that measures earnings by quantity or quality
▪ Geographic location where work is performed
▪ Education, training or experience to the extent that they are reasonably related to work in question
▪ Travel, if the travel is a regular and necessary condition of the work performed
▪ Exceptions much be applied
reasonably
▪ Each factor accounts for the entire
wage differential
▪ Prior wage history was not relied on
justify disparity
Prior Wage History--
What An Employer May NOT Do:
▪ Inquire of prior wage history▪ Rely on the prior wage history to determine
wage rate of new hire▪ Discriminate or retaliate against an
individual for failing to disclose their wage history
▪ Discharge or retaliate against anyone who complains about a violation of this section
▪ Prohibit employees from discussing wages▪ Ask employee to sign a waiver or other
document that prohibits employee from disclosing this information
Enforcement
▪ Employees may file complaint in Court
or may file with CCRD
▪ Must file within 2 years of the violation
▪ Each paycheck with disparate wages
is a new violation
▪ Jury trial
Damages
▪ If employee prevails, may recover up
backpay for up to 3 years
▪ Liquidated damages in amount equal
to backpay owed
▪ Reinstatement or promotion, where
appropriate
▪ Reasonable costs, including attorneys’
fees
▪ Other relief determined by Court
Defense
▪ Difference in pay was in good faith and that employer had reasonable grounds for believing difference in pay did not violate statute
▪ To establish “good faith” may consider evidence within two years prior to date complaint filed that employer completed a thorough and comprehensive pay audit with specific goal of identifying and remedying unlawful pay disparities
Transparency Requirements:
▪ Employers shall make reasonable efforts to announce, post or otherwise make known to all current employees all opportunities for promotion
❑ Same calendar day
❑ Prior to making a decision▪ Posting shall include the hourly rate or
salary for position OR a range of the compensation
▪ Posting shall include description of benefits and other compensation to be offered
Record-Keeping
▪ Employer shall keep records of job
descriptions and wage history for
period of time individual is employed,
plus two years.
Penalties
▪ Employees can file complaint with Colorado Department of Labor & Employment
▪ Failure to comply with the posting or record-keeping requirements can result in fine of $500 to $10,000 per violation
▪ If legal claim brought for unequal wages, and records not maintained, judge can instruct the jury that the employer’s failure to keep the records can be considered evidence that the employer did not act in good faith
ACTION ITEMS
▪ Check your applications and remove questions regarding prior wage history
▪ Train those in hiring process NOT to ask about prior wage history
▪ Check your policies for prohibitions on discussing wages
▪ Audit pay wages of all employees prior to January 1, 2021 and make any necessary adjustments
▪ Audit pay wages of all employees annually (or at least every two years) and make any necessary adjustments
▪ Establish hourly rate, salary, or ranges for all positions
▪ Clearly document any lawful basis for differential pay
SB 19-188
Family and Medical Leave
Insurance (FAMLI) Program
Establishes a 14-member task force to
create recommendations for a family
and medical leave program for Colorado
employees and study cost impact
FAMLI Benefits▪ Bill states Department may not implement FAMLI until
General Assembly enacts legislation for it to do so
▪ Anticipated timeline:
❑ 7/1/2020 FAMLI Program Established
❑ 1/1/2022 Public Education Begins
❑ 1/1/2023 Program Funding Begins
❑ 1/1/2024 Payment of Benefits Begins
▪ Many details unknown until legislation adopted in 2020
▪ Expected to cover ALL employees in Colorado
▪ Purposes of the leave similar to FMLA:
❑ Serious Illness
❑ Caring for a loved one with a serious illness
❑ Bonding with a new child
❑ Needs arising from military deployment, effects of domestic violence, stalking and sexual assault
ACTION ITEMS
▪ Monitor state law, particularly what happens
during next legislative session
▪ If enacted, work to establish appropriate
policies and procedures for compliance
Updated Colorado Labor Law Posters
▪ Updated CDLE poster regarding
unemployment insurance -- issued April
2019; applies to Districts
▪ Updated CDLE poster regarding workers’
compensation -- issued June 2019;
applies to Districts
ACTION ITEMS
▪ Double-check your posters to be sure they are up to date
❑ https://www.colorado.gov/pacific/cdle/posters
▪ New posters are available at:
❑ https://www.colorado.gov/pacific/sites/default/files/Notice_to_Workers_English.pdf
❑ https://www.colorado.gov/pacific/sites/default/files/WC049_Work_Comp_Poster_2019.pdf
▪ Watch for differences in requirements between private and public employers
HB 19-1018
Change to Minimum Age for
Commercial Driver’s License
Reduces age of those eligible for a
Colorado commercial driver’s license
(CDL)
How Change Impacts Your
District:
▪ Reduces age for Colorado CDL from 21 to 18 (for driving within Colorado only)
▪ District may allow those who are 18-21 to drive a CMV, with exceptions
▪ Drivers still must be at least 21 years old for:
❑ Commercial vehicles across state lines (interstate);
❑ Hauling hazardous materials which require placarding; or
❑ Operating vehicle with doubles or triples trailers
ACTION ITEMS
▪ If applicable to your District, consider
whether to modify minimum age
requirements for certain positions
▪ If so, enact appropriate policies and
procedures to ensure 18-20 year old
employees do not drive CMV not in
compliance with federal law
Questions?
Michelle B. Ferguson, Esq.
303-628-3658
mferguson@irelandstapleton.com
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