Highlights of Colorado Employment Law
June 30, 2016
By: Brent T. Johnson
Colorado has amended or enacted several statutes in recent years imposing new requirements on employers. 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.
(c) the statute prohibits discrimination on the basis of sexual orientation.
(d) unlike the EEOC, the Colorado Civil Rights Division is authorized to conduct hearings and grant relief.
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 has a Minimum Wage Order which applies to the following four 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 minimum wage for 2016 is $8.31, and 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 Claim Act 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 within 14 days of a written demand for payment may result in penalties up to 125% 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 for determining whether a person performing services is to be considered an independent contractor or an employee. An employer that 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.
Jury Duty
A Colorado statute requires employers to pay employees certain amounts for jury duty.
Continuation of Health Insurance Coverage
A Colorado statute provides health insurance continuation rights. 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.
Family Care Act
This statute provides leave rights similar to those under the federal FMLA for an employee in a civil union or domestic partnership to care for the employee’s partner with a serious health condition. Given the applicability of the FMLA to same-sex marriages after the U.S. Supreme Court’s 2015 ruling in Obergefell v. Hodges, this statute appears mostly moot, but it could still potentially allow 12 weeks of unpaid leave in addition to leave available under the FMLA.
Employment Verification
In 2016, Colorado repealed its former law that required specific employment eligibility verification requirements beyond the federal requirement for completion of Form I-9.
Credit History
A Colorado statute prevents employers from requesting or using credit information, such as credit reports, in employment decisions, subject to certain exceptions.
Social Media
A Colorado statute prevents employers from requesting or requiring access to social media accounts of employees or applicants, subject to certain exceptions.
Nursing Mothers
A Colorado statute requires reasonable unpaid break time to allow an employee to express breast milk for up to two years after a child’s birth, and requires reasonable efforts to provide a suitable location for this purpose.
Personnel File Access
Effective January 1, 2017, a new Colorado statute grants current and former employees the right to review and copy their personnel files, but no private right of action is expressly granted in the statute.
Posters
Colorado law requires posters to be placed where employees have access to them on the following subjects: antidiscrimination, unemployment compensation, worker's compensation, notice of paydays, and minimum wage (for employers subject to the Minimum Wage Order).
Marijuana
Although both medical and recreational marijuana use is legal under Colorado law, the Colorado Supreme Court ruled in 2015 that employers may lawfully terminate an employee who tests positive for marijuana.
Pregnancy Accommodation
A new statute passed in 2016 requires employers to provide reasonable accommodations to perform the essential functions of the job to applicants and employees if needed for health conditions related to pregnancy or the recovery from childbirth.
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.
Copyright © 1996, 2016 Fairfield and Woods, P.C., ALL RIGHTS RESERVED.
Comments or inquiries may be directed to: Brent T. Johnson.