Developments in the Colorado Legislature

April 13, 2018

By: Colin A. Walker

As the 2018 Colorado Legislative session draws to a close, there have been several developments which may be of interest to employers, human resources professionals, and employment lawyers.

On April 10, 2018, Representatives Coleman and Petterson introduced House Bill 18-1377.  This bill would amend the Colorado Anti-Discrimination Act (“CADA”) to make it an unfair employment practice to ask job applicants for compensation history.  The main justification for this bill is equal pay, the idea being that employers are likely offer compensation that is comparable to past compensation, which would perpetuate historically lower compensation received by women.  Opponents feel that recruiters should be able to quickly identify applicants whose compensation needs are not in alignment with the position.  The bill has been assigned to the House Finance Committee.  A hearing has not been set.

On March 16, 2018, Representatives Petterson, Bridges, Donovan, and Todd, introduced HB 18-1298, the Colorado Secure Savings Plan.  This bill would require all employers to participate in a state-administered retirement plan for employees unless they have a “qualified” retirement plan, “qualified” being defined by reference to the Internal Revenue Code.  The requirement would apply to employers which have been in business for two years or more and which have 100 or more employees in the first year, 50 or more in the second, and 5 or more in the third and in every succeeding year.  The sponsors argue that retirement savings are far too low and that requiring retirement plans through employment would encourage employees to save for retirement.  Opponents feel that administering such programs is extremely expensive and time-consuming, particularly for small employers, and point out that many employees do not use them even given the opportunity.  It has been assigned to the House Business Affairs and Labor Committee.  The sponsors of the bill have asked that it be reclassified as a “study.”  In that event, the Legislature would commission a study by staffers but it would not be presented for a vote.

HB 18-1256, the Colorado Civil Rights Division (“CCRD”) Sunset Bill, has passed the House and has been set for a hearing before the Senate Judicial Committee on April 18 at 1:30 p.m.  As almost no one, not even staunch business advocates, seems to think the CCRD should cease to exist, it is nearly certain to pass, though possibly conditioned on business-friendly amendments to CADA.  

On April 10, 2018, HB 18-1378, the Equal Pay for Equal Work Act, was introduced by Representatives Danielson and Buckner and Senators Donovan and Fields.  This bill would amend the existing Wage Equality Regardless of Sex Act, which prohibits discrimination in compensation based on sex, in several ways.  It would authorize lawsuits by employees for actual damages, liquidated damages in the amount of the actual damages, and attorneys’ fees, where previously the Department of Labor had sole enforcement authority.  The Department of Labor would continue to have regulatory enforcement authority.  Employers would have a good faith defense and could have differentials if they could prove that the differential was based on a bona fide seniority, merit, or similar system.  The bill would also prohibit retaliation against employees who exercise their rights under the act.  It would also require record keeping for job descriptions and wage rates for all employees for the duration of the employee’s tenure and three years thereafter.  In addition, the bill would require employers to announce all opportunities for promotion simultaneously to all existing employees, to disclose a salary or wage range in all job listings, and to select a salary or wage within the posted range.  If the employer intended to select a salary or wage outside the published range, it would have to republish the job listing.  The bill has been set for a hearing on April 23, 1:30 p.m., before the House Finance Committee.

Two bills which could affect employers with arbitration agreements with their employees (HB 18-1261 and HB 18-1262) were also introduced.  These bills require certain disclosures by arbitrators, designed to identify bias, and more ability to challenge the award of arbitrators, apparently on the theory that employees and consumers do not have sufficient bargaining power regarding arbitration.  Opponents point out that Colorado already has a law regarding arbitration, the Colorado Uniform Arbitration Act, which adequately addresses these issues and is consistent with the laws of other states.  Both bills have been set for hearings on April 18, at 1:30 p.m., before the Senate State, Veterans and Military Affairs Committee.

Several of these bills, if enacted, could require significant changes in the policies and procedures of employers.  Though it is far from clear that they will pass, especially so late in the legislative session, it is certainly possible.  In addition, bills are often reintroduced in future legislative sessions when they may have a better chance of passing, particularly if there has been a significant change in the composition of the legislature.  Employers would be well advised to keep abreast of these bills and to consult competent employment counsel.

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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