And We’re Off!!! 2025 Starts with a Bang!!!
By Michael Santo, COSHRM Legislative Director and Managing Attorney at Bechtel & Santo
The calendar had barely flipped to 2025, and the Colorado legislature proposed a couple of employment/human resources bills, and the United States Supreme Court issued a decision that will impact how wage claims will be adjudicated moving forward. Such a flurry certainly caused many to muse, “so much for easing into the year.” So, what has happened so far?
The Colorado legislature proposed changes to the Colorado Labor Peace Act. Way back in 1943, Colorado passed the Colorado Labor Peace Act. This Act requires that if a union receives more than 50% of the votes in an election to unionize a company’s workforce that a second election vote must be held where the employees will vote on whether the company will be considered a “union shop.” A “union shop” is defined as an organization where the employees are required to join a labor union as part of their employment. In essence, employees in a union shop must join the union, whereas employees who work in companies that are not a union shop can decide whether they want to join the union as part of their employment. In this second election, more than 75% of the employees must vote in favor of the company becoming a union shop.
Now, the Colorado legislature is seeking to amend that Act that has stood for more than 80 years by removing the requirement for the second election. Of course, this is not the first time the Colorado legislature has undertaken this effort. In 2007, the Colorado legislature proposed and passed a similar bill only to have then-Governor Ritter veto the bill. So, this bill is likely to draw a lot of fireworks during the 2025 term.
Advocates of the bill claim that the current law makes it harder for unions to bargain for improved work conditions, like higher pay, because if the union does not win the second election, employees are not required to pay union dues. Opponents claim that having only one election means that employees in the minority on the vote, which could be nearly 50% of the employees, would be forced to join the union when they do not want to.
This bill will certainly be one that we will be hearing about all legislative term.
The Colorado legislature proposes changes to Colorado’s Wage Act. While the revisions to the Colorado Labor Peace Act were drawing all the attention, the first bill out of the Colorado House of Representative this legislative session was a bill that would greatly amend Colorado’s Wage Act by providing increased penalties against employers who incorrectly classify workers as independent contractors when they should be classified as employees. The bill would also provide employees more opportunities to file claims against their employers with the Colorado Department of Labor and Employment instead having to file those claims in Court. Finally, the bill also includes anti-retaliation measures for undocumented workers who report wage claims.
The United States Supreme Court issues wage decision. In summer 2024, the United States Supreme Court agreed to hear the case of E.M.D. Sales, Inc. v. Carrera. This case involves the issue of what evidentiary standard courts should use when determining whether an employer has established that an employee meets one of the FLSA’s duty-basis tests. As background, for an employee to be exempt from receiving overtime, the employer must establish that the employer paid the employee at least the relevant salary amount and that the employee meets one of the FLSA’s duty-basis tests (e.g., executive, ad-ministrative, professional, etc.)
Courts have traditionally held that when determining the duty-basis test, courts should use the “preponderance of the evidence” test, which means, in essence, that the majority of the evidence supports the decision. But, in Carrera, the 4th Circuit Court of Appeals determined that was too low of the standard and that organizations must establish that the employee met one of the FLSA’s tests by the “clear-and-convincing” standard, which carries a greater burden than the preponderance of the evidence test.
Fortunately for employers, the Supreme Court recently issued a decision that the correct standard is the preponderance of the evidence standard, instead of the clear-and-convincing standard.
In sum, while we are only a few weeks into 2025, headlines regarding employment/HR laws seem to be a daily occurrence and many more are expected over the upcoming months.
