Colorado Legislation 2016 Update on Employment Laws

In the 2016 legislative session, the Colorado Legislature will be addressing several pieces of legislation that could significantly impact Colorado employers.  On January 27, 2016, Senator Chris Holbert (R-District 30), Chair of the Senate Business, Labor & Technology Committee, addressed the Labor and Employment Council for the Colorado Association of Commerce & Industry and provided an overview of the upcoming employment legislation.  Campbell Litigation attended the meeting and provides the following summary.

A.        Employee Access to Personnel Records

While several other states have laws regarding an employee’s right to access his or her personnel file, Colorado does not have such a requirement.  However, that may soon change.  As of this publication, no bill has been introduced, but it is expected that Representative Joe Salazar (D-Thornton) will introduce a bill that would require Colorado employers to permit a requesting employee, or former employee, to inspect and obtain a copy of his or her personnel file.[1]  In addition, the employer would also be required to add rebuttal information from the employee, or former employee, to the personnel file.  Such a bill would put a tremendous burden on Colorado employers, and potentially gives disgruntled employees, or former employees, the ability to comb through their personnel file in an attempt to create a legal claim against their employer, or former employer.  While Senator Holbert did not believe such a bill would be enacted, Colorado employers should be aware of this bill’s potential impact on their business. 

B.        Parental Leave for Attending Child’s Academic Activities

In 2009, Colorado enacted the Parental Involvement in K-12 Education Act (“2009 Act”), which required an employer to provide up to six hours per month, and up to eighteen hours in an academic year, for an employee to attend his or her child’s academic activities, such as parent-teacher conferences, interventions, dropout prevention, attendance, truancy, or discipline issues.  Employers were allowed to limit the leave to three-hour increments and require the employee to provide written verification of the activity from the school.[2]  The 2009 Act expired on September 1, 2015, and Representative Janet Buckner (D-Aurora) and Senator Andy Kerr (D-District 22) have introduced legislation that would essentially re-enact the 2009 Act.[3]  While many Colorado employers previously updated their policies to comply with the 2009 Act, employers who have not will want to follow this legislation to determine whether a policy update is necessary.

C.        Pregnancy Accommodation

Another potential bill that appears to be on its way to the Colorado Legislature this session would require employers to provide reasonable accommodations to an applicant or an employee for conditions related to pregnancy or childbirth.  While the bill may not initially look onerous, given that employers are already complying with the Americans with Disabilities Act (“ADA”) and the Pregnancy Discrimination Act (“PDA”), it is very expansive, essentially requiring an employer to provide an employee her requested accommodation.  This differs from the ADA and PDA, which require an interactive process to determine what accommodations may be available, and only require the employer to provide a reasonable accommodation that may or may not be the employee’s preferred accommodation.  Put simply, this bill would grant pregnancy a favored status, an idea that runs in direct conflict with recent Supreme Court precedent.[4]  Senator Holbert does not believe that the legislature would pass this bill, but Colorado employers should be aware of the bill’s impact.

D.        Eliminating Verification Requirements for Employers

Senator Jessie Ulibarri (D-District 21) recently introduced Senate Bill 16-076 that would eliminate a state statute requiring employers to attest to the legal status of each employee (within twenty days of hire and keep copies of documentation), that the employer has not altered or falsified the employee’s identification documents, and that the employer has not knowingly hired an unauthorized alien.[5]  In essence, the statute requires employers to provide the same documentation as they do for the federal I-9 form.  As a result, Senate Bill 16-076 would remove an unnecessary employer burden.  Given its duplicative and unnecessary nature, and the fact that many employers are unaware of the statute, Senate Bill 16-076 has received bipartisan support and is expected to pass. 

E.        Definition of Employer

Another bill recently introduced in the Colorado House of Representatives would clarify the definition of employer to only include a person that possesses authority to control an employee’s terms and conditions of employment and exercises that authority directly.[6]  Further, the bill specifies that a franchisor would not be considered an employer of the franchisee’s employees, unless found to exercise control over the franchisee or its employees not customarily exercised by a franchisor for the purpose of protecting the franchisor’s trademarks and brand.[7]  While the bill would not change the definition of employer at the NLRB or federal court level, it has the potential to shape Colorado law in a positive manner for employers in the state.

F.         Pay Equity Legislation

It is widely expected that several bills regarding equal pay will also be introduced this session.  One such bill would make it a discriminatory act for employers to ask a potential employee his or her previous salary history.  This bill would have an enormous impact on Colorado employers.  Many employers would likely have to change their applications to remove any questions regarding pay at previous employment.  Further, recruiters who normally use salary histories as a way to sort through applicants would potentially have to spend time recruiting a candidate who ultimately wants a salary far beyond what the position allows.  As a result, employers would have to spend valuable time and resources to comply with this bill.[8]

Another pay equity bill introduced by Representatives Jessie Danielson (D-Wheat Ridge) and Janet Buckner (D-Aurora) requires employers with fifty or more employees that bid for state contracts to certify that it is in compliance with federal and state equal pay standards and laws.[9]  Importantly, the bill would require a contractor to certify its subcontractors payment practices comply with federal and state laws.  As a result, this bill would be very difficult for employers to comply with, and duplicates laws already passed.  Moreover, the bill would impose harsh penalties on employers, such as losing the entire contract, for what may amount to minor violations.

G.        Conclusion

The Colorado Legislature will address several key pieces of legislation in the coming months that could greatly impact Colorado employers.  Campbell Litigation will track these bills throughout the legislative session and report back on their progress.

[1] The employer may require the employee, or former employee, to pay the reasonable copying costs.

[2] Employees were also required to give one-week notice, unless an emergency, and the employer could restrict leave in cases of emergency or if the employee’s absence would halt the employer’s service or production.

[3] See House Bill 16-1002.

[4] See Young v. United Parcel Service, Inc., 135 S. Ct. 1338 (2015).

[5] See Colo. Rev. Stat. § 8-2-122.

[6] See House Bill 16-1154.

[7] Id.

[8] In addition, there is little, if any, evidence that this bill would actually solve any pay equity issue.

[9] See House Bill 16-1001.