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Colorado Employers Faced Waves of New Laws in 2023

By Community Manager posted 12-08-2023 08:31 AM

  

Colorado has consistently been much more active than neighboring states regarding new laws and rules. The trend can be anticipated to continue in the legislative session beginning in January 2024. But before looking ahead, ensure you are complying with or are prepared to comply with the new laws resulting from the 2023 session, some of which took effect earlier this year and some of which take effect in 2024. Below is a summary of those laws. 

Family and Medical Leave Insurance Program (FAMLI) 

As most are aware, Colorado’s new paid family leave law will be in full effect starting January 1, 2024, and employees may take up to 12 weeks of paid leave for qualifying reasons. This includes bonding time for parents with a newborn or newly adopted child, as well as caring for a spouse, child, parent, grandparent, certain other relatives, or the employee themselves in the case of a serious health condition. The paid leave is funded through employee payroll contributions, making it a shared responsibility between employers and workers. By now, all employers and many employees have been making contributions, and employers have been reporting required wage data to the Family Division. As of late November, employees have been able to apply to take benefits beginning in January 

As January approaches, employers should ensure they have informed their employees about the new law, make sure their policies and procedures are updated to align with the law, and have a system in place for tracking leave requests. Communication is going to be key during the transition. The FAMLI Division has a wealth of information and updates for employees and employers on its website. Employers Council also has helpful information on ourFAMLI Resources Community page. 

Equal Pay 

The 2023 legislative session produced a new law that put more teeth into the Equal Pay for Equal Work Act. As of January 1, 2024, employers will now need to post the date an 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. For more detailed information, see our recent news article and our whitepaper.  

COMPS and PAY CALC 

Colorado Overtime & Minimum Pay Standards Order #38 is replaced as of January 1, 2024, with Order #39. In addition to nonsubstantive changes, the rules around tipping have been changed. COMPS Rule 1.8.1 clarifies that tips are not part of the regular rate for overtime calculations. Rule 1.10 amends the "tipped employee" definition in two ways. First, whether an "occupation" is "customarily" tipped will now be determined by an expressly individualized look to the duties of the particular employee. The second is the Division finds $1.64 per hour in tips to be an apt definition of the minimum to qualify as a "tipped employee," finding the current definition of $30 per month to be outdated. A new COMPS #39 poster for inclusion in handbooks is expected soon. 

The Publication and Yearly Calculation of Adjusted Labor Compensation Order (PAY CALC) Order was updated for 2024. In addition to the new minimum wages, the salary basis level for executive/supervisor, administrative, or professional employees to be exempt from overtime in Colorado will be $1,057.69 per week, or $55,000 annually. Other minimum salary levels also apply for specialized employees. 

Healthy Families and Workplaces Act (HFWA) 

A bill from the 2023 legislative session provided additional circumstances for employee use of paid sick leave under the HFWA as of August 7, 2023. The new law allows 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.  

The new requirement applies to all Colorado employers. It does not increase the amount of time off required under HFWA (48 hours per year as accrued, one hour per 30 hours worked). It does, however, require employers to allow use of those hours for more than the previous reasons. Leave under HFWA cannot be denied for business reasons, and no retaliation can be taken against employees who use the leave. For more information, see our previous article. 

Protecting Opportunities and Workers’ Rights (POWR) Act 

The POWR Act, which took effect in August 2023, changed the standards for harassment claims in Colorado, including removing severe and pervasive standards under state law. The bill created 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.  

The new law also 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 arose 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. 

For more information, see our previous article. 

Wage Claim Collections 

As of April 17, 2023, the Division of Labor Standards and Statistics in the Colorado Department of Labor and Employment will pay employees if an employer doesn't for a wage claim. 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 Division will continue to pursue payment from the employer, and any money recovered from the employer will be credited to the fund. This is another reason to take prompt action when faced with a wage claim. The state has substantial means to recover wages it deems due. Find more information about Senate Bill 23-231 on the Colorado General Assembly website. 

A New Notice 

Under HB 23-1006, passed in spring 2023, employers will be required to provide a notice of federal and state refundable tax credits with the annual wage and tax statement (form W-2). The requirement starts with W-2s that will be issued in 2024 for tax year 2023. The Colorado Department of Revenue (DOR) recently issued a sample notice to help employers fulfill the requirement. Learn more in our recent article. 

Job Application Fairness Act 

During the 2023 Colorado legislative session, lawmakers passed Senate Bill 23-058, the Job Application Fairness Act. The new law 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. 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 sample employment applications offered by Employers Council are already in compliance with the new law. For more information, see our previous article. 

The following two laws apply only to Colorado government employers: 

Public Collective Bargaining/PROPWA 

As a supplement to the COBCA rules that were passed in 2022 and became effective in July 2023 that gave large counties election, arbitration, and bargaining rights, SB 23-111 was passed in 2023 to allow protected concerted activity for almost all government employers in Colorado not covered by other statutes. However, it does not require recognition or collective bargaining. It was effective August 7, 2023, with enforcement effective on July 1, 2024. The CDLE was accepting public comments on its proposed rules for PROPWA through December 7, 2023, and final rules for administering the Act will be forthcoming. 

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, municipalities, fire authorities, school districts, public colleges and universities, library districts, special districts, public defender's offices, the University of Colorado hospital authority, the Denver Health and Hospital Authority, the Colorado Legislature, and the Board of Cooperative Educational 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. Unfair labor practices will be enforced by the Division of Employment and may be further appealed to the Court of Appeals. For more information, please see our previous article. 

Restrictions on Nondisclosures for Public Employers 

A new law passed in 2023 restricts nondisclosure agreements for government employees. The law 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. Learn more in this Employers Council whitepaper. 

It was a very busy 2023 in Colorado, and we can only wait and see what comes about in 2024. Employers Council will be here to help. If you have any questions or need assistance, please email our Member Experience Team. 

 


#Discrimination
#Hiring
#Leaves
#PayingEmployees
#Harassment
#JobDescriptions
#Leaves-TimeOff
#Leaves-Mandated
#EmployeeRecords
#Overtime
#StateWageLaws
#PayEquity
#Colorado
#EmployeeCommunication
#GovernmentAgency

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