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