Legislative Roundup: New Laws Will Affect Colorado Employers

By Community Manager posted 05-12-2023 09:55 AM


Colorado’s 2023 legislative session, which concluded on May 8, produced numerous employment-related bills that have become or are likely to soon become new statutes. Below is a list of passed bills relevant to Employers Council members, some of which were awaiting Governor Polis’s signature as of the morning of May 12. The governor has until June 7, 2023, to sign or veto a bill, or it becomes law without his signature.  

SB23-017: Provides additional circumstances for employee use of paid sick leave under the Healthy Families and Workplaces Act (HFWA). Not yet signed. If signed, it will be effective August 7, 2023.

The new law would allow an employee to use accrued paid sick leave under HFWA to do the following: 

  • 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 events or circumstances 

  • Grieve, attend funeral services or a memorial, or deal with financial and legal matters that arise after the death of a family member. 

  • Evacuate the employee's place of residence due to inclement weather, loss of power, loss of heating, loss of water, or other unexpected occurrences or events. 

SB23-046: Modifies the calculation of benefits paid under the Family and Medical Leave Insurance Program (FAMLI). Signed and became law on March 23, 2023.  

The bill made a covered individual's weekly amount for FAMLI benefits be based on total earnings during the individual's base period or alternative base period, rather than earnings from only the individual's current job at the time of taking leave.  

SB23-053: Restricts nondisclosure agreements for government employees. Not yet signed. If signed, it will be effective August 7, 2023. 

The bill effectively prohibits the state, counties, cities and counties, municipalities, special districts, or other public agencies from requiring a non-disclosure agreement that restricts the employee from disclosing factual circumstances concerning the employee's employment with the government, with a few exceptions.  

If such a clause exists in an employment contract or agreement, the provision is deemed unenforceable, with minor exceptions. The bill also prohibits taking any adverse employment-related action, including withdrawal of an offer of employment if the applicant or employee does not enter into such a contract or agreement. 

Any adverse employment-related action after an employee has refused to enter into such a contract or agreement is direct evidence of retaliation. Any person who enforces or attempts to enforce this now unlawful agreement is liable for the employee's reasonable attorney fees and costs in defending against the action. 

SB23-058: Prohibits employers from inquiring about a prospective employee's age, date of birth, and dates of attendance at or date of graduation from an educational institution on an initial employment application. Not yet signed. If signed, it will be effective July 1, 2024. 

In lieu of asking about dates of education, an employer may request or require an individual to provide additional application materials, including copies of certifications, transcripts, and other materials created by third parties, at the time of an initial employment application. If the employer does so, it must notify the individual of their right to redact information that identifies their age, date of birth, or dates of attendance at or graduation from an educational institution. 

The employer may request an individual to verify compliance with age requirements imposed pursuant to or required by: 

  • A bona fide occupational qualification pertaining to public or occupational safety 

  • A federal law or regulation 

  • A state or local law or regulation based on a bona fide occupational qualification 

Verification requests by those three exceptions must not require disclosure of an individual's specific age, date of birth, or dates of attendance at or date of graduation from an educational institution on an initial employment application. 

SB23-105: Puts more teeth into the Equal Pay law. Not yet signed. If signed, it will be effective January 1, 2024.

Current law authorizes the director of the Division of Labor Standards and Statistics in the Colorado Department of Labor and Employment (CDLE) to create and administer a process to accept and mediate complaints, provide legal resources concerning alleged wage inequity, and create necessary rules. The bill changes these authorizations to requirements. 

If an employer does not have a physical location in Colorado and has fewer than 15 employees working in the state, all of whom work only remotely, then, through July 1, 2029, the employer is only required to provide notice of remote job opportunities. 

Employers will now need to post the date the application window is anticipated to close. They will also need to make reasonable efforts to announce, post, or otherwise make known, within 30 calendar days after a candidate who is selected to fill a job opportunity begins working in the position, information to at least the employees with whom the employer intends the selected candidate to work with regularly. Additional specific information must be provided.  

For positions with a career progression, an employer must disclose and make available to all eligible employees the requirements for career progression, in addition to each position's terms of compensation, benefits, full-time or part-time status, duties, and access to further advancement.  

Employers Council will provide additional information on this statute. 

SB23-111: Allows protected concerted activity but does not require collective bargaining for almost all government employers in Colorado not covered by other statutes. Not yet signed. If signed, it will be effective August 7, 2023, with one provision effective on July 1, 2024. 

The bill extends rights to protected concerted activity reflective of the National Labor Relations Act (NLRA) to public employers in Colorado not covered by other statutes. That includes a county with a population of less than 7,500, or a city and county; a municipality; a district, business improvement district, or special district; public schools (including charter schools) and higher education; the office of state public defender; the Denver health and hospital authority; the joint budget committee staff, the legislative council staff, the office of legislative legal services, the staff of the office of the chief clerk of the House of Representatives, and the Senate services staff; the majority and minority caucus staff of the House of Representatives and the Senate; and a board of cooperative services. 

The bill creates "employee organizations" that are independent of the employer and that exist for the purpose of acting on behalf of the public employees concerning grievances, labor disputes, wages, hours, and other terms and conditions of employment. However, creation of these organizations allows for unfair labor practice charges (ULPs) but not the right or obligation by the employer to recognize or to negotiate a collective bargaining agreement. 

ULPs will be enforced by the Division of Employment, and then may be further appealed to the Court of Appeals. 

Additional information on this statute will be forthcoming from Employers Council. 

SB23-172: The POWR Act changes standards for harassment claims, including removing severe and pervasive standards under state law. Not yet signed. If signed, it will be effective August 7, 2023. 

The bill creates harassment as a basis for a charge with the Colorado Civil Rights Division. It adds marital status to protected classes and aligns disability claims to the federal Americans with Disabilities Act (ADA) related to reasonable accommodations. 

Under the act, harassment means to engage in any unwelcome physical or verbal conduct or any written, pictorial, or visual communication directed at an individual or group of individuals because of that individuals or group's membership in, or perceived membership in, a protected class. The harassment must be subjectively offensive to the individual alleging harassment and objectively offensive to a reasonable individual who is a member of the same protected class. The conduct or communication need not be severe or pervasive to constitute a discriminatory or unfair employment practice. The nature of the work or the frequency with which harassment in the workplace occurred in the past is not relevant to whether the conduct or communication is discriminatory. 

Notwithstanding the previous definition of harassment, petty slights, minor annoyances, and lack of good manners do not constitute harassment unless the slights, annoyances, or lack of manners, when taken individually or in combination and under the totality of the circumstances, meet the standards. Factors to consider under the totality of the circumstances include the frequency of the conduct or communication; the number of individuals engaged in the conduct or communication; the type or nature of the conduct or communication; the duration of the conduct or communication; the location where the conduct or communication occurred; whether the conduct or communication is threatening; whether any power differential exists between the individual alleged to have engaged in harassment and the individual alleging the harassment; any use of epithets, slurs, or other conduct or communication that is humiliating or degrading; and whether the conduct or communication reflects stereotypes about an individual or group of individuals in a protected class. 

A defense against a harassment charge for actions by a supervisor remains if an employer takes prompt, reasonable action to investigate or address alleged discrimination and if the employer takes prompt, reasonable remedial actions. The defense includes if the employer has communicated the existence and details of an antidiscrimination program to both its supervisory and nonsupervisory employees, and the employee has unreasonably failed to take advantage of the employer's program. 

The bill restricts nondisclosure agreements for any alleged discrimination with exceptions for when the agreement applies equally to all parties, limited release of settlement information, and other exceptions. It also addresses nondisparagement in such agreements.  

New recordkeeping requirements arise under this law. An employer must keep for at least five years an accurate designated repository of all written or oral complaints of discriminatory or unfair employment practices that includes the date of the complaint, the identity of the complaining party, the identity of the alleged perpetrator, and the substance of the complaint. Records of complaints in an employer's designated repository maintained in accordance with this law are not public records.

Employers Council will provide additional information on this statute. 

SB23-231: Allows the Division of Labor Standards and Statistics in the Colorado Department of Labor and Employment to pay employees if an employer doesn't for a wage claim. Signed and became law on April 17, 2023.

If an employer fails to fulfill the order to pay an employee that results from a wage claim or an investigation within six months after the division issues a citation and notice of assessment to the employer or within six months after a hearing officer issues a decision, the Division will pay the employee, from the wage theft enforcement fund, the amount of money owed by the employer. The bill specifies that after the Division pays the employee, the employee cannot recover that payment amount from the employer, the Division shall continue to pursue payment from the employer, and any money recovered from the employer by the Division will be credited to the fund. 

SB23-232: Modifies premium rates for unemployment compensation. Signed and became law on May 1, 2023. 

For purposes of complying with requirements of federal law, the law reduces employer premium rates by 10% across all rates in the standard premium rate schedule. Additionally, the bill creates a schedule for the support surcharge rate used to establish contributions to the employment support fund, the employment and training technology fund, and the benefit recovery fund. 

The bill also eliminates the requirement for employers to submit premium reports to the Division of Unemployment Insurance and instead requires employers to submit wage reports. 

HB23-1006: Requires employers to notify employees about the availability of income tax credits. Signed into law on March 31, 2023. Becomes effective August 7, 2023.  
We wrote on the bill previously. A sample notice will be issued by the Colorado Department of Revenue when the bill becomes law on August 7, 2023. Employers will be required to issue the notice in spring 2024 for the tax year 2023. 

HB23-1045: Clarifies that National Guard members get three weeks of leave annually and can use paid or unpaid leave. Signed into law and became effective on March 10, 2023. 

Public employers must pay for a full equivalent of three weeks of work on the employee's regular work schedule each year, up from the previous 15 days. Private employers must give three weeks of leave and allow an employee to use any paid or unpaid leave available. Both public and private employees also retain reemployment rights. 

HB23-1076: Modifies workers’ compensation laws and mostly affects insurance carriers. Not yet signed. If signed, it will be effective August 7, 2023. 

The law increases the duration of workers’ compensation benefits based on mental impairment, changes rules around artificial devices, allows an employee to request a hearing on the loss of total temporary disability benefits under certain circumstances, updates provisions related to independent medical examinations, and increases the amount of attorney fees that are presumed unreasonable. 

HB23-1189: Provides a tax credit for employers that help employees purchase a home. Not yet signed. If signed, it will be effective August 7, 2023. 

The bill creates a state income tax credit for employers that make a monetary contribution to an employee for use in purchasing a primary residence. The amount of the credit allowed is 2.5% of an employer's contribution to an employee, but the credit is capped at $5,000 per employee per year, and an employer cannot receive a credit of more than $375,000 for all contributions made in a year to employees. The employee must use the money contributed for eligible expenses, which include a down payment and closing costs, including fees for appraisals, mortgage origination, and inspections. An employee may authorize their employer to withhold a specified amount of the employee's earnings as an employee contribution into the savings account established by the employer that holds the employer contribution. There are additional rules, including regarding tax consequences and employee terminations. The executive director of the Department of Revenue will create rules related to the implementation of the credit. Employers should encourage employees to consult with their tax accountant regarding this and any other personal tax credits.  

HB23-1196: Clarifies that workers compensation is not the only remedy for those aggrieved by violations of child labor laws. Not yet signed. If signed, it will be effective July 1, 2023 

The bill clarifies and amends Colorado child labor laws. It allows parents of children protected by the act to pursue in court for violations in addition to workers' compensation remedies if: 

  • An injury occurred to a minor during a week when the employer intentionally required the minor to work hours in violation of those allowed by the act; or 

  • An injury occurred to a minor while the minor was engaging in work prohibited by the act. 

However, a claimant who wins a court case will have the amount of workers compensation payments deducted. 

If you have any questions, please contact Employers Council.