• Labor & Employment Bills Before 2010 Colorado Legislature
  • July 20, 2010 | Author: Thomas E. J. Hazard
  • Law Firm: Holland & Hart LLP - Denver Office
  • The Colorado General Assembly convened January 12, 2010, and as in years past, several bills have been introduced that, if passed, would  have significant impact on Colorado employers.  The following is a summary of some of the bills that have been introduced this session, their effect on Colorado employers, and their status as of press time.  We’ll provide you an update later with any new developments.

    HB 1269 -- Workplace Fairness and Civil Rights and Remedies Act

        HB 1269, the Workplace Fairness and Civil Rights and Remedies Act, would have allowed employees who bring discrimination cases under the Colorado Anti-Discrimination Act (CADA) the same remedies as are now available to discrimination plaintiffs who sue under federal anti-discrimination laws, like Title VII of the Civil Rights Act or the Americans with Disabilities Act.

        Currently, employees suing for discrimination under CADA may only recover economic damages, like back pay.  Under HB 1269, the remedies available to a prevailing employee in a CADA discrimination lawsuit would be expanded to include emotional distress damages, pain and suffering, and attorneys’ fees -- in other words, the same damages available to a prevailing plaintiff who sues under federal discrimination statutes.

        HB 1269, sponsored by Rep. Claire Levy (D-Boulder) and Sen. Morgan Carroll (D-Aurora), would have several implications for Colorado employers.  First, unlike federal anti-discrimination statutes, which cover employers with at least 15 employees, CADA applies to all employers in Colorado, large and small.  If passed, small businesses accused of discriminatory practices would face potential jury awards that could easily bankrupt the company.  Even if the discrimination case had no merit, a small business would likely choose to pay out a costly settlement rather than assume the high cost of defending the lawsuit and the risk a jury might rule against the company.

        Second, CADA covers discrimination not covered by federal anti-discrimination laws, such as discrimination on the basis of sexual orientation and marital status.  Passage of HB 1269 would therefore allow claims for discrimination not covered by federal law -- but with the same remedies available to other types of claims under federal anti-discrimination law.

        Third, state courts would become the venue of choice for discrimination plaintiffs and their lawyers.  That would be bad news for employers because with state court dockets already bursting at the seams, state courts simply do not have the time or resources to resolve cases at the pre-trial stage.  Therefore, more discrimination cases -- including frivolous ones -- would go to trial, requiring employers to shell out significant sums to defend the cases.

        Fortunately, HB 1269 never made its way out of the House of Representatives.  On April 15, 2010, the measure died on a tie 32-32 vote on the Second Reading vote.   Five Democrats joined with all of the House Republicans and unaffiliated Rep. Kathleen Curry (Gunnison) to defeat the measure.

    HB 1397 -- Healthy Families and Workplaces Act

        HB 1397, sponsored by Rep. Cherylin Peniston (D-Adams) and Sen. Morgan Carroll (D-Aurora), would have required all private employers in Colorado to provide employees with one hour of paid sick leave for every 30 hours worked.  Employees working for an employer with 10 or more employees would be allowed to accrue up to 72 hours of paid sick leave in a 12-month period, while those working for an employer with less than 10 employees could accrue no more than 40 hours of paid sick time in a 12-month period.   In addition, employees would be allowed to carry forward and use in a subsequent calendar year accrued but unused sick leave from the previous year, subject to the caps allowed in a 12-month period.

        HB 1397 was introduced April 6, 2010, but in an acknowledgment that more work needed to be done on the bill in order to pass the Legislature, Rep. Peniston pulled the bill the very next day.  Similar legislation was offered last legislative session, but died in the House Business Affairs and Labor Committee because of a lack of votes to pass it out of the committee.

    HB 1012 --Surveillance of Workers’ Compensation Claimants

        Colorado’s workers’ compensation provides wage loss benefits and prompt medical care to those injured on the job.  For the most part, those who are injured on the job are entitled to these benefits.  However, there are more than a few who try to cheat the system, claiming there are unable to work while working on the side, engaging in recreational activities beyond their claimed physical restrictions, or committing other types of fraud.  To catch these scofflaws, workers’ compensation insurers and self-insured employers often hire private investigators to surreptitiously videotape these individuals to catch them in their fraud.

        Sponsored by Rep. Sal Pace (D-Pueblo) and Sen. Morgan Carroll (D-Aurora), HB 1012 would place restrictions on when an insurer or self-insured employer can conduct surveillance on a workers’ compensation claimant.  First, the insurer or employer has to have a “reasonable basis” that the injured worker is committing fraud or has made some material misstatement concerning the claim.  “Reasonable basis” is not defined by the bill.  Second, the measure provides for a $1,000 per day penalty for unauthorized surveillance.  The penalties are paid to the worker.

        HB 1012 has passed the House by a vote of 34-28, and as of press time, the measure is before the Senate Judiciary Committee for consideration.

    SB 133 -- Tax Credits for Rehire of Laid-off Workers

        SB 133, sponsored by Rollie Heath (D-Boulder) and Rep. Joe Rice (D-Littleton), would provide income-tax credits for businesses that rehire in 2010 workers who were laid off by the company in 2009.  The credits would be equal to a percentage of the employer’s cost for paying FICA taxes, which is 7.65% of the employee’s salary.  If the employer rehires the laid-off worker by May 31, 2010, the employer is eligible for a 67% tax credit and a 33% tax credit for employees rehired by if rehired by August 31, 2010.

        In other words, if a company rehires a worker who was laid off in 2009 before May 31 and pays the worker $60,000, the employer is eligible for a tax credit of a little over $3,000 for that worker.  However, to claim that credit in tax year 2011, the employer must submit an affidavit stating that but for the tax credit created by the bill, the employer would not have rehired the individual.

        The measure barely made it out of the Senate on an 18-16 vote, with all Republicans voting against the measure.  SB 133 now goes to the House, where it faces a challenge not only from Republicans but also from several Democrats.  Critics of the bill say that in these times where there is a state budget shortfall, tax credits and exemptions of this type should not be extended.

    HB 1023 -- Civil Liability for Hiring Person with Criminal Background

        On March 29, 2010, Gov. Bill Ritter (D) signed into law HB 1023, a measure sponsored by Rep. Mark Waller (R-Colorado Springs) and Sen. Evie Hudak (D-Westminster).  HB 1023 reduces the risk of employers hiring convicted felons by prohibiting in a negligent hiring lawsuit the introduction into evidence of an employee’s criminal history if the employee’s criminal record does not have a direct bearing on the facts underlying the civil case.  The bill would also prohibit introduction of any evidence of a criminal case that resulted in sealed record or involved an arrest or charge that did not lead to conviction.

        The bill is intended to encourage employers to hire ex-convicts by limiting what evidence can be introduced in a negligent hiring case should the ex-convict be the perpetrator of a workplace crime that is wholly unrelated to the crime for which the employee did time.  For example, if an employer hires a convicted sex offender who punches out an employer’s customer and the employer is sued for negligent hiring of the employee, evidence of the sex offense could not come into evidence in the negligent hiring lawsuit.

        While one wonders why anyone would ever hire an ex-convict in the first place, the Equal Employment Opportunity Commission’s policy is that an employer’s blanket refusal to hire ex-convicts absent business necessity is unlawful under Title VII of the Civil Rights Act because it has an adverse impact on Blacks and Hispanics in light of statistics showing that they are convicted at a rate disproportionately greater than their representation in the population.  Recently, the EEOC has stepped up enforcement of this policy by bringing actions against several employers who automatically reject applications from applicants with criminal histories.

        SB 33 -- Mandatory Use of E-Verify to Determine Work Eligibility Status

        Under a law passed in 2006, any private company working on state-funded jobs or projects is required to use the federal electronic verification system (E-Verify) to determine the work eligibility status of all new employees hired by the employer.  SB 33, sponsored by Sen. Dave Schultheis (R-Colorado Springs) and Rep. Baumgardner (R-Hot Sulphur Springs), would have extended that requirement to all private employers in the state, phasing in the requirement for the smallest businesses by 2013.

        Sen. Schultheis has raised this issue every session since 2006.  Strongly opposed by the Colorado Association of Commerce and Industry and the Colorado Competitive Counsel because of the burdens placed on business by the measure and problems with the E-Verify system, the bill died by a vote of 3-2 in the Senate State, Veterans and Military Affairs Committee.  While the bill was defeated in the general assembly, there is a possibility a similar measure may be presented as a ballot initiative in the upcoming November election.