Highlights of Colorado Employment Law

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Highlights of Colorado Employment Law

by By Brent T. Johnson

This very brief overview of some of the main features of Colorado employment law is intended as an aid to employers in spotting issues that may arise under Colorado employment law, not as a full explanation of the details of the law. The overview assumes that the reader has some familiarity with federal and other general employment law issues.

Antidiscrimination Law

Colorado's antidiscrimination law is generally similar to federal law. Additional features, however, include:

(a) the statute prohibits employers from discharging or refusing to hire an individual solely because that person is married to or plans to marry another employee, subject to certain exceptions.
(b) the statute prohibits an employer from terminating an employee due to that employee engaging in lawful off-duty activities, subject to certain exceptions. (Although this law when enacted was considered a "smoker's bill of rights," claims have also been asserted under this law in cases of discharge due to sexual orientation and due to posing for semi-nude photographs.)
(c) Some cities, including Denver and Boulder, have ordinances prohibiting discrimination on the basis of sexual orientation and marital status.

Wrongful Discharge

Colorado courts have recognized causes of action for wrongful discharge based on the following theories:

(a) Implied contract or promissory estoppel. These cases have generally involved claims that an employer promised, usually in an employee handbook, that employees would only be fired for cause, or that certain procedures such as progressive discipline would be followed before discharge. Disclaimers in handbooks are not always given effect, and key issues regarding disclaimers are whether they are clear and conspicuous, and whether other policies contain assurances that are inconsistent with the disclaimer.
(b) Breach of public policy. An employee may sue if discharged in retaliation for exercising a statutory right (such as filing a worker's compensation claim) or if discharged for complying with a statutory duty (such as refusing to submit false information in a government report).
(c) Express covenant of fair dealing. Although Colorado courts have rejected the theory that every employment relationship has an implied covenant of good faith and fair dealing, cases (primarily in federal court) have allowed claims that an employer's policies expressly guaranteed to treat employees "fairly."

Wage/Hour Issues

Colorado does have a Minimum Wage Order which applies to the following industries: retail and service, commercial support service, food and beverage, and health and medical. Compliance with the federal Fair Labor Standards Act requirements will generally satisfy Colorado requirements, except the Colorado Order also requires overtime pay for hours over 12 per workday, certain meal and rest breaks, payment by the employer of uniform costs, and posting of the Order.

The Colorado wage payment statute requires immediate payment of wages if an employee is terminated by the employer (extendable to six hours after start of next regular workday if payroll department is not operational at time of termination). If an employee resigns, final wage payment may be made on the next regular payday. Failure to pay wages may result in a 50% penalty and liability for attorney fees. The statute also limits an employer's ability to make deductions from wages.

Non-Compete Agreements

A Colorado statute invalidates such agreements, with certain exceptions for executive and management personnel, protection of trade secrets, recovery of training expenses, and in connection with the sale of a business. Any non-compete agreements which are permissible must be reasonable in duration and geographic scope.

Negligent Hiring/Retention

Colorado cases have ruled that employers may be held liable to third persons for intentional injuries caused by an employee (for example, sexual assault) if the employer was negligent in hiring or retaining the employee. An employer may have a duty to conduct criminal background checks on applicants if the job duties will bring the employee into close contact with the public or if the employer is put on notice that the applicant may pose a danger to the public.

Independent Contractors

Colorado's unemployment and worker's compensation statutes include specific criteria which must be met if a person performing services is to be considered an independent contractor rather than an employee. In addition, an employer which contracts out work to another company might be held liable for worker's compensation benefits and penalties if employees of the "subcontractor" are injured, unless the subcontractor carries worker's compensation coverage.

Garnishment

Colorado law prohibits discharge of an employee due to garnishment of the employee's wages.

Voting

Colorado has a time-off-to-vote statute.

Domestic Violence Leave

Under Colorado statute, employees who have worked for an employer for at least 12 months may take up to three days of unpaid leave in any 12 month period for specified reasons relating to domestic abuse, stalking, sexual assault or other crimes involving domestic violence. The employee may use such leave to seek a restraining order, obtain medical care or mental health counseling, make his/her home secure or obtain new housing, or to seek legal assistance or attend or prepare for court-related proceedings. The employee must provide advance notice if possible, except in cases of imminent danger to the employee. Information relating to this type of leave must be kept confidential.

Jury Duty

A Colorado statute requires employers to pay employees certain amounts for jury duty.

Continuation of Health Insurance Coverage

A Colorado statute addresses this issue. Compliance with the federal "COBRA" statute will generally constitute compliance with the Colorado statute, but Colorado law does not include the COBRA exception for terminations for gross misconduct, and the Colorado law applies to smaller employers who are not covered by COBRA.

Personnel File Access

There is no Colorado statute requiring employee access to personnel files.

Posters

Colorado law requires posters to be placed where employees have access to them on the following subjects: antidiscrimination, unemployment compensation, worker's compensation, and minimum wage (for employers subject to the Minimum Wage Order). Denver also requires a poster under its antidiscrimination ordinance.

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.