By Steve Collis
Every year, the Colorado General Assembly considers a myriad of employment-related bills, but only a small number ever get signed into law. This update highlights what has (and hasn’t) passed this session thus far.
Four Month Legislative Session
For its 2017 legislative session, the Colorado House and Senate convened on January 11th and will adjourn on May 10th. During the 120 days of the session, legislators will introduce, debate, and vote on many bills – over 600 had been introduced by mid-April. But with Democrats holding a majority in the House (37 Democrats; 28 Republicans) and Republicans holding a slight majority in the Senate (18 Republicans; 17 Democrats), few bills get passed in both chambers and make it to the Governor’s desk to be signed into law. Here is a look at the status of significant employment bills up for consideration this year.
Colorado Bills That Passed
Wage Theft Transparency Act (HB17-1021): Colorado’s wage law will now treat information about an employer’s violation of wage law as a public record that may be released to the public upon an open records request. The information may include any notice of citation or notice of assessment issued to an employer for a wage violation following exhaustion of all remedies, unless the information involves a trade secret. Before releasing the information, the Director of the Division of Labor Standards and Statistics will notify the employer of the potential release of the information. The employer then has 20 days to provide the Director with documentation demonstrating that the information is a trade secret. If the Director determines that the information, or any part of it, is a trade secret, it will be treated as confidential and will not be released. For purposes of this designation, a “trade secret” has the same meaning as set forth in Colorado’s Uniform Trade Secret Act, C.R.S. § 7-74-102(4). Governor Hickenlooper signed this bill into law on April 13, 2017.
Entities That May Provide Fingerprints For Background Checks (SB17-189): Prior to this change in law, individuals needing to submit fingerprints for a criminal history check to hold certain licenses or jobs were required to get their fingerprints taken by a local law enforcement agency. As a result of this amendment, other third-party vendors who are approved by the Colorado Bureau of Investigation may capture a person’s fingerprints electronically using the livescan equipment approved by the Bureau. This should make it easier to complete the onboarding process for new hires in jobs requiring fingerprint-based criminal checks, such as school personnel, child and elder care workers, private investigators, and others. The bill passed both the House and Senate and was signed into law by the Governor on April 24, 2017.
Worker’s Comp Clarification on Mental Impairments (HB17-1229): This bill adds definitions for “psychologically traumatic event” and “serious bodily injury” and revises the definition of “mental impairment” under the Colorado workers’ compensation statute. The purpose is to clarify when a worker is entitled to benefits for a mental impairment. The new definitions capture traumatic events such as being subject to the use of deadly force, or witnessing a death or serious bodily injury, or the immediate aftermath of the same. This bill passed the House in late March and passed the Senate on April 19, 2017. It should be headed to the Governor’s desk for signature and if signed, will become effective on July 1, 2018.
Elimination of NLRB Exempt Employers From Colorado Wage Transparency Protections (HB17-1269): Colorado’s anti-discrimination law (CADA) prohibits discrimination on many grounds, including because employees disclose, compare, or discuss their wages. Prior to this amendment, this CADA provision excluded employers who are exempt from the provisions of the National Labor Relations Act (generally, governmental entities, federal reserve banks, and entities subject to the Railway Labor Act). This amendment eliminates the exclusionary sentence, thereby providing wage transparency protections to all Colorado employees. The House passed this bill in early April and the Senate passed it on April 20, 2017. It heads to the Governor’s desk and if signed, will go into effect on August 9, 2017.
Employment-Related Bills Still Under Consideration
FAMLI Act – Creation of Family and Medical Leave Insurance Program (HB17-1307): This bill would create a family and medical leave insurance program (FAMLI) in the Department of Labor and Employment to provide partial wage-replacement benefits to eligible individuals who take leave from work to care for a new child or a family member with a serious health condition or who are unable to work due to their own serious health condition. The insurance program would be funded through employee premiums. Each employee in Colorado would pay a premium (through payroll deduction) based on a percentage of the employee’s yearly wages, not to exceed .99%. The director of the division would determine the premium percentage and the weekly benefit amounts, according to parameters set in the bill. Employers could not require employees to use other accrued paid leaves prior to use of this paid FAMLI leave. This bill passed in the House and was introduced in the Senate on April 28, 2017.
Failed Employment-Related Bills
Ban-The-Box Bill (HB17-1305): This bill would have affected the timing of a prospective employer’s inquiry into a job applicant’s criminal history. Ban-the-box laws are becoming prevalent in many states and municipalities around the nation. This Colorado bill sought to prohibit employers from advertising that a person with a criminal history may not apply, and from asking on an initial job application about the applicant’s criminal history or stating that those with a criminal history may not apply. Exemptions would have existed for jobs where a law specifically prohibits a person convicted of certain crimes from being employed and for employers who participate in a program to encourage employment of individuals with a criminal history. The bill stated that it would not create a new protected class under employment antidiscrimination laws or create a private cause of action for individuals to file lawsuits. Instead, the Department of Labor and Employment would enforce the law through issuance of warnings, orders of compliance, and for second or subsequent violations, civil penalties. The bill passed in the House but died in Senate committee on May 1, 2017.
Academic Activities Leave (HB17-1001): This bill sought to reinstate the protections of the 2009 Parental Involvement in K-12 Education Act, which automatically repealed in September 2015, to allow employees to take time off to attend academic activities for or with the employee’s child. The bill, one of the first introduced in the House this session, passed in the House but died in Senate committee on March 15, 2017.
Legislative work really heats up in the final weeks of the session so stay tuned for further developments.