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Employment Bills Headed to the Governor

    May 17, 2023
    By Michael Santo, COSHRM Legislative Director and Managing Attorney at Bechtel & Santo

    Yes, it’s that time of the year again. Time for the flowers to bloom. Time for warmer and longer days. And the time of the year that the Colorado legislature sends bills that it passed to the Governor. In Colorado, Governor Polis has three options when he receives a bill:

    1. The Governor may sign the bill, in which case the bill becomes law. 
    2. The Governor may let the bill become law without his signature. The Governor has certain time periods depending on when the Legislature sent him the bill under this option. 
    3. The Governor may veto the bill.

    This legislative session produced a number of employment bills that recently found their way to the Governor’s desk. For example: 

    POWR (SB23-172)

    One of the more debated and discussed employment bills during the 2023 legislative session was the Protecting Opportunities and Workers’ Rights Act (“POWR”). If it becomes law, POWR amends Colorado’s Anti-Discrimination Act as follows:

    • Adds protections from discriminatory or unfair employment practices for individuals based on their “marital status.”
    • Modifies the required level of proof in a harassment lawsuit from the current “severe or pervasive standard” to one where the conduct is determined as to whether it is “subjectively offensive to the individual alleging harassment and is objectively offensive to a reasonable individual who is a member of the same protected class.” 
    • Specifies the requirements that must be satisfied for a nondisclosure provision in a release agreement between an employer and an employee or a prospective employee to be enforceable. 
    • Requires an employer to maintain personnel and employment records for at least five years and, with regard to complaints of discriminatory or unfair employment practices, to maintain those records in a designated repository.

    Employees May Accept Cash Tips Bill (HB23-1146)

    If it becomes a law, this bill would prohibit organizations from taking an adverse action against an employee who accepts a cash gratuity offered by a patron. 

    Job Application Fairness Act (SB23-058)

    Starting July 1, 2024, this bill would, if passed, prohibit employers from inquiring on the initial application about a prospective employee’s age, date of birth, and dates of attendance at or date of graduation from an educational institution. An employer could request at that application stage the individual to provide additional application materials, including copies of certifications, transcripts, and other materials, if the employer notifies the individual that the individual may redact information that identifies the individual’s age, date of birth, or dates of attendance at or graduation from an educational institution. An employer may also request an individual verify compliance with age requirements imposed pursuant to or required by: (1) a bona fide occupational qualification pertaining to public or occupational safety; (2) a federal law or regulation; or (3) a state or local law or regulation based on a bona fide occupational qualification.

    Ensure Equal Pay for Equal Work (SB23-105)

    Since its passage, many Colorado organizations have looked for clarification regarding Colorado’s Equal Pay Act’s requirement to post “promotional opportunities.” This year’s Colorado legislature took aim at clarifying things with SB23-105. This bill would amend the Equal Pay Act to identify that an employer shall make reasonable efforts to announce, post, or otherwise make known each “job opportunity.”  SB23-105 defines a “job opportunity” as a current or anticipated vacancy for which the employer is considering a candidate or candidates or interviewing a candidate or candidates or that the employer externally posts. Further, SB23-105 also identified that if it becomes law, Colorado employers are required to make reasonable efforts to announce, post, or otherwise make known the following information within 30 days after a candidate is selected and begins performing work in the position to, at minimum, the employees the employer intends the selected candidate to regularly work with: (1) the name of the selected candidate; (2) the selected candidate’s former job title if presently employed by the organization; (3) the selected candidate’s new job title; and (4) information on how current employees may demonstrate interest in similar job opportunities, including identifying individuals or departments to whom the employee can express interest in similar positions.  

    Additional Uses Paid Healthy Families and Workplaces Act (“HFWA”)
    Sick Leave (SB23-017)

    At the same time that Colorado employers were receiving the news that the requirement to make leave available to employees due to the public health emergency of COVID were coming to an end, which officially ends on June 8, 2023, the Colorado legislature was passing a bill that would expand the reasons that an employee could use HFWA Sick Leave. That is, if passed, SB 23-017 would add the following such reasons for employees to use the sick leave portion (i.e., not the public emergency leave portion) of HFWA:

    • care for a family member whose school or place of care has been closed due to inclement weather, loss of power, loss of heating, loss of water, or other unexpected occurrence or event that results in the closure of the family member’s school or place of care;
    • grieve, attend funeral services or a memorial, or deal with financial and legal matters that arise after the death of a family member; and
    • evacuate the employee’s place of residence due to inclement weather, loss of power, loss of heating, loss of water, or other unexpected occurrence or event that results in the need to evacuate the employee’s residence.

    One bill that is not headed to the Governor’s desk is HB23-1078, which was entitled the “Unemployment Compensation Dependent Allowance Bill.” This bill would have created an additional allowance of $35 per week, per dependent for an individual receiving unemployment benefit. That bill was postponed indefinitely by the Colorado Senate right near the end of the term. 

    So, in short, certainly an interesting term in the Colorado legislature. Now, as the old saying goes, “all there’s left to do is wait” to see what Governor does with each of the bills. And, until then, we can cheer on the Denver Nuggets. Go Nuggets!!!

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