Colorado Lawmakers to Introduce the “Fair Workweek Employment Standards” Bill This Session

Ashley Graves, Law Clerk

A bill (House Bill 23-1118) regulating employee scheduling will be introduced this session which, if passed, will make Colorado one of two states—the other being Oregon—requiring large, covered employers to provide covered employees with advanced scheduling and planning for employee hours and shifts, plus extra pay for abrupt changes to hours and shifts.[1]  Its current provisions would require covered employers to post work schedules two weeks in advance, give workers at least twelve hours off between shifts, and require “predictability” pay to be given to workers whose hours are abruptly changed.[2]  Most of the bill’s provisions apply to employers with 250 or more employees that operate in the retail and food and beverage industries.  Importantly, the employee count is “global,” meaning that all of an employer’s employees would count regardless of whether the employees are located in Colorado.

Another provision applies to private sector employees and employers more broadly, and would prohibit employers from retaliating against employees who request changes to their schedules.  However, employers would not be required to always honor those requests just because an employee makes the request.  Another provision of the bill would require that covered employers first offer shifts to current employees before hiring more workers in the event of a work shortage.  The employer would need to post notice of the available hours or shifts internally for four days.  The predictive scheduling provisions would be enforced by Colorado’s Department of Labor and Employment, and violations could include back pay and a $10,000 fine.

As mentioned previously, if the bill is passed, Colorado would join Oregon as the only states with this sort of legislation.  Colorado’s bill differs slightly from Oregon’s current law, as it covers employers with at least 250 employees compared with Oregon’s requirement of 500 employees.  Another difference is that Oregon’s bill also covers hospitality workers.

A study was conducted by the University of Oregon on the effects of the predictive scheduling bill in the state, revealing that the law has ultimately fallen short of its promise. Almost 100 employees and managers affected by the law reported that employers were avoiding the predictive scheduling requirement by using standby lists and waivers.  Specifically, the bill was amended to include a “voluntary standby list” provision that allows employers to maintain a list of workers who agree to work additional hours when unforeseen circumstances occur, and these workers agree to work without additional compensation for the schedule changes.[3]  On the other hand, Oregon’s predictability scheduling law does not mandate predictability pay when the employee requests the last-minute schedule change.  So, another way employers have been dealing with the requirement is by framing schedule changes as the employee’s choice. Specifically, some Oregon employees have been asked to volunteer to meet business needs, and these employees are then asked to sign a waiver stating that the change is voluntary.  

Also of note, on January 26, 2023, the Colorado Chamber of Commerce published a press release specifically opposing House Bill 23-1118 on the grounds that the bill will further compound an already complex and difficult legislative and regulatory landscape for businesses in Colorado, further driving business out of state and resulting in harm to both workers and the overall business climate in Colorado.[4]

Key Takeaways

            Even though House Bill 23-1118 is still in its early stages, employers and business groups should begin understanding this bill and its legal and practical implications, as they could dramatically affect employer obligations to employees in terms of shifts, scheduling, and pay.  Oregon’s version of the law may be different in certain respects, but it nonetheless provides an interesting case study in how House Bill 23-1118 may affect Colorado employers and employees if the bill is signed into law.

[1] https://leg.colorado.gov/bills/hb23-1118

[2] https://www.denverpost.com/2023/01/19/colorado-workers-scheduling-bill-labor-business/

[3] https://nwlaborpress.org/2020/09/study-says-employers-are-skirting-landmark-law-aimed-at-curbing-abusive-scheduling-practices/

[4] https://cochamber.com/2023/01/26/colorado-chamber-fair-workweek-bill-would-drive-business-out-of-state/