Developments in 2016 Colorado Legislative Session Regarding Employment Law

June 2, 2016

By: Colin A. Walker

The 2016 Colorado legislative session adjourned on May 11, 2016, and there were several developments which will affect employers in Colorado. 

The legislature passed House Bill 16-1432, which gives employees the right to review their personnel files.  The bill gives private employees the right to review and copy their personnel files once per year.  Former employees have the right to review and copy their personnel files once following separation.  “Personnel file” is defined broadly to include personnel records used to determine the employee’s qualifications for employment, promotion, additional compensation, or employment termination or other disciplinary action, but the definition excludes:

  • Documents required to be kept in a separate file (such as information on Americans with Disabilities Act accommodations)
  • “Active” criminal investigations
  • “Active” disciplinary investigations
  • Information in a document that identifies a person who made a “confidential accusation as determined by the employer”

Nothing in this bill requires an employer to retain documents contained in a personnel file.  There is no private cause of action and it is unclear how this would be enforced.  The bill would take effect January 1, 2017.

While this will be new in Colorado, many other states have had similar laws for years, so it is not new to many employers and HR professionals.

House Bill 1438, regarding pregnancy accommodation, also passed.  This bill amends the Colorado Anti-Discrimination Act (“CADA”) to require Colorado employers to “provide reasonable accommodations … for health conditions related to pregnancy or the physical recovery from childbirth… unless the accommodation would impose an undue hardship.”    The bill also prohibits employers from retaliating against a pregnant woman who requests accommodation, requires the employer to provide notice of rights under the bill, allows the employer to require a doctor’s note, and requires the employer and employee to engage in an interactive process regarding the accommodation.   The existing procedures and remedies under CADA would apply.

This will certainly be a big change for smaller employers not subject to the federal employment statutes.  While complete analysis is beyond the scope of this article, it appears that that this bill will require accommodation of pregnancy issues beyond what is required by the federal employment statutes.  Careful study is warranted. 

Senate Bill 16-179, which requires the Department of Labor to offer guidance on classification of workers as employees or independent contractors, also passed.  It will be interesting to see the Department of Labor’s position on this complicated, controversial, and timely subject.

SB 16-056 prohibits discipline against state employees who disclose to a “Whistleblower Review Agency” confidential information while reporting waste, mismanagement of public funds, abuses of authority, or illegal and unethical practices.  Whistleblower Review Agencies include the office of legislative legal services, the state attorney general, and the commission on judicial discipline.  Before disclosing confidential information, the employee must make good faith attempt to provide the information to supervisor, the public employer, or a legislator.  There is no protection for employees who knowingly or negligently disclose false information. 

House Bill 16-1114 eliminates the state employment verification affirmation form that ensures that employees are eligible for employment.  The legislature concluded that this is redundant of federal requirements and an unnecessary burden on employers.

It is also interesting which bills were not passed:

  • House Bill 16-1166 which would have prohibited employers from asking job applicants for past compensation history
  • House Bill 16-1388 (“Ban the Box”) which would have prohibited employers from inquiring into an applicant’s criminal history until the applicant has been interviewed
  • Senate Bill 16-054 which would have allowed local governments to enact laws regarding the minimum wage.

Also of note:

  • On May 23, 2016, the U.S. Department of Labor issued its new (“overtime”) regulations increasing the salary limit for exempt employees from $23,660 to $47,476, effective December 1, 2016.   This will change the classification of many employees from exempt to non-exempt unless their salaries are increased.  The other criteria for the exemptions have not changed. 
  • Amendment 69 to the Colorado Constitution (“ColoradoCare”) will be on the ballot in November.  This amendment would create a universal health care system for Colorado residents by imposing new taxes including taxes on employers and employees.  This is extremely controversial and many policy organizations, trade groups, businesses, and governmental entities have taken strong positions on it.

The world of human resources and employment law is constantly in flux.  Employers and HR professionals should work with competent legal counsel to understand and adapt to the changing HR environment.

This Article is published for general information, not to provide specific legal advice. The application of any matter discussed in this article to anyone's particular situation requires knowledge and analysis of the specific facts involved.

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