Dealing with A Patchwork of Employment Laws: Colorado Checklist
August 24, 2021
By: Colin A. Walker
In the last blog post (video), John Aplin, an experienced member and chair of many boards of directors, talked about the challenges faced by national and regional employers from differing state employment laws. This is often referred to as a “patchwork” of employment laws. If an employer employs workers in several states, it must be aware of laws which exist in one state but not others, or which may be different from state-to-state. If there are significant differences, such employers will need to adjust their practices and policies, sometimes by having specific employee handbooks for each state, or riders or addenda to an employee handbook of general application to address specific state laws. If an employer fails to educate itself about differing employment laws, it can be exposed to significant liability.
Colorado is a good example. In recent years the Colorado legislature has enacted significant workplace legislation which imposes requirements on employers not found in many other states. Below is a non-exclusive list of specific Colorado employment laws, which are likely to differ from other states’ requirements. It is not intended to be a thorough discussion of Colorado employment law, but rather to make employers aware of certain specific laws with which they are required to comply. I suggest having written policies for these laws.* This, of course, is no substitute for consulting competent legal counsel.
Colorado Chance to Compete Act (“Ban the Box”) (C.R.S. § 8-2-130)
Prohibits an employer from advertising that a person with a criminal history may not apply, making such a statement on an employment application, or inquiring about criminal history on an initial employment application. It does not prohibit employers from performing lawful criminal record checks. There are exceptions for situations in which the law prohibits individuals with certain criminal convictions from being employed for a position, the position is designated by the employer for participation in a program to encourage the employment of individuals with criminal records, and the employer is required by law to conduct a criminal background check for the position.
Colorado Employment Opportunity Act (C.R.S. § 8-2-126)
Prohibits employers from requesting or using credit information (such as credit reports) in employment decisions for employees and job applicants, subject to certain exceptions.
Pregnancy Accommodation (C.R.S. § 24-34-402.3)*
Requires 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.
Healthy Families and Workplaces Act (HFWA) (C.R.S. § 8-13.3-401, et seq)*
Requires up to 48 hours of paid leave per year for certain reasons (similar, but not identical to, FMLA) and up to 80 hours (including the above 48) for certain conditions relating to a public health emergency (such as COVID).
Equal Pay for Equal Work Act (C.R.S. § 8-5-101, et seq)
Prohibits sex-based discrimination in compensation, asking employment candidates about compensation history, and requires employers to announce promotional opportunities to employees, including compensation (or range of compensation) and a description of benefits. If employers choose to post job openings externally, the law imposes certain requirements, including compensation (or range of compensation) and a description of benefits.
Domestic Violence Leave (C.R.S. § 24-34-402.7)*
Permits an employee who has worked for an employer for at least 12 months to take up to three working days of leave from work in any twelve-month period, without pay, if the employee is the victim of domestic abuse, stalking, sexual assault, or any other crime related to domestic abuse.
Jury Duty (C.R.S. § 13-71-126)*
Requires employers to compensate employees at their regular wage rates not to exceed $50 per day for up to 3 days of jury duty in state court (but not federal court).
Leave for Voting (C.R.S. § 1-7-102)*
Employees are entitled to two hours of paid leave on the day of an election for a period of two hours during the time the polls are open.
Meal and Rest Periods (COMPS Order, 7 CCR 1103-1, Rule 5)*
Employers must provide one duty-free, uninterrupted 30-minute, unpaid, meal period when the shift exceeds 5 consecutive hours. Employers must provide one 10-minute paid rest period every 4 hours of work.
Overtime (COMPS Order, 7 CCR 1103-1, Rule 4.1.1(B))
Employers must pay overtime if an employee works more than 12 hours in one work day (in addition to overtime for over 40 hours of work in a workweek).
Break Time for Nursing Mothers (C.R.S. § 8-13.5-101, et seq)*
Employers must allow reasonable break times for an employee to express breast milk for her nursing child for up to two years from birth. Employers must make reasonable efforts to provide a place, other than a bathroom, that is shielded from view and free from intrusion which may be used by the employee. The time to express breast milk will be unpaid.
Access to Personnel Files (C.R.S. § 8-2-129)
Gives private employees the right to review and copy their personnel files once per year and former private employees the right to review and copy their personnel files once following separation.
Colorado Social Media and the Workplace Act (C.R.S. § 8-2-127)
Prohibits employers from suggesting, requesting, or requiring an employee to provide usernames or passwords for LinkedIn or other social media accounts; compelling an employee to add contacts to his/her social media contacts; suggesting, requesting, or requiring an employee to change privacy settings on a social media account; and retaliation against any employee who reports a violation of the policy or who cooperates in an investigation regarding the policy.
Protecting Spouses (C.R.S. § 24-34-402(1)(h))
Colorado law prohibits employers from terminating employees because they are a spouse of another employee except under certain circumstances such as where there is a supervisory relationship.
Colorado Anti-Discrimination Act (“CADA”) (C.R.S. § 24-34-401 et seq.)
CADA is Colorado’s general employment discrimination statute and, in most respects, is similar to the federal anti-discrimination laws.
Colorado Posting Requirements
Colorado law requires posters to be placed where employees have access to them for certain subjects. See CDLE Website at: https://cdle.colorado.gov/posters.
Paid Family and Medical Leave Insurance Act (Proposition 118) (To be codified at C.R.S. § 8-13.3-401, et seq)
This law will require additional paid leave for family and medical leave. It does not go into effect until January 1, 2024.