Legislative Developments in Colorado

By Brooke Colaizzi, Patrick Scully and Andy Volin

The Colorado General Assembly entertained several bills that had labor and employment implications during the 2009 session.  Sherman & Howard attorneys actively assisted clients in opposing bills that would have provided financial assistance to employees in union-management labor disputes, and would have afforded much greater financial remedies to employees in discrimination cases.  The legislature, among other things, made unemployment compensation benefits more readily available, provided leaves of absence to many employees for parental activities, and cracked down on employers issuing bad paychecks. 

Here are summaries of the most significant bills that passed the legislature and either were signed into law or vetoed by Governor Ritter as of the issuance of this newsletter.  Because some bills passed by the legislature are still on the Governor's desk, please watch for additional summaries in the next edition of Sherman & Howard's Labor & Employment Newsletter.

HB 1170: Unemployment insurance benefits for locked-out employees

This bill, had it not been vetoed by Governor Ritter, would have permitted employees locked out by a member of a multi-employer bargaining unit to receive unemployment insurance benefits if the lockout resulted from the employer's attempt to withdraw or eliminate some benefit or advantage possessed by the employees.  Sherman & Howard attorneys testified in opposition to the bill.

Had Governor Ritter signed HB 1170, the bill would have had a significant impact on the ongoing labor negotiations between United Food and Commercial Workers No. 7 (Local 7) and Safeway, King Soopers, Albertson's, and City Markets.  HB 1170 was a central part of Local 7's negotiations strategy.  If the bill had become law, the union could have called a strike against one employer in the multi-employer bargaining unit, and thereby induced a defensive lockout by other employers in the unit.  The locked-out employees would have been entitled to unemployment compensation benefits.   

Although Governor Ritter publicly touted the merits of the bill, his stated basis for not signing it into law was that he believed it would make the supermarket contract negotiations more difficult.  In practice, the veto operated to prevent the State's unemployment compensations funds from providing a substantial financial benefit to the employees and Local 7 in their labor dispute with the grocers.

The Governor did encourage the legislature to consider the subject matter of the bill in the future.

HB 1057: Parental Involvement in K-12 Education Act

This bill, signed by Governor Ritter on June 1, 2009, to be effective on August 5, 2009, grants parents and legal guardians of children in public, private or non-public home educational programs in grades K-12 unpaid leave from work to attend certain school-related activities.

Specifically, employers with 50 or more employees for at least 20 weeks per calendar year are subject to the law.  Only those parents and legal guardians who work in non-executive and non-supervisory jobs are eligible for the leave time.  Leave is limited to six hours per month and 18 hours per academic year for a full-time employee (part-time employees are entitled to reduced leave hours, based on the fraction of a full-time schedule they work).  For example, a part-time employee working 32 hours a week is entitled to four-fifths (32/40) of the awarded leave hours.

Employers may require that leave be taken in increments no greater than three hours and may require written verification of the school-related activity from the school.  Employees must give employers at least one week's notice of their need for leave and must make reasonable efforts to schedule the school activities around regular work hours. 

Employees have the option of substituting their accrued paid leave before taking the unpaid parental involvement leave afforded by HB 1057.  Likewise, employers may require employees to take their accrued paid leave before taking the unpaid parental involvement leave. 

Importantly, if an employer provides employees with some type of personal leave that can be used for parental involvement activities, the employer need not provide separate parental involvement leave.  For instance, if an employee gets three eight-hour personal days per year and the employer permits those days to be used to attend school activities, the employer is not required to provide additional parental involvement leave.

SB 110: Regulation of civil rights

On the surface, this bill (signed by the Governor on May 11, 2009) was merely the mandated periodic "sunset review" for the Colorado Civil Rights Division ("CCRD") and Colorado Civil Rights Commission, Colorado's state counterparts to the federal EEOC.  The bill continues the CCRD and CCRC through July 1, 2018.  It made minor procedural changes for the agencies and to the CCRD Director's powers. 

Far more significant, however, are those provisions of the bill that did not make it through the legislative process.  As introduced, SB 110 would have amended the Colorado Anti-Discrimination Act to mirror federal anti-discrimination laws, allowing for compensatory and punitive damage awards, the recovery of attorney fees and costs, and jury trials, all of which would have increased the financial risks to employers, especially smaller ones, in discrimination cases.  These provisions were stricken in committee, and one of our Labor and Employment Law Department's attorneys played a significant role in defeating the provisions.  As a result, Colorado employers will notice few, if any, differences in their dealings with the CCRD and CCRC.

SB 247: Expansion of unemployment insurance benefits

In order to receive certain federal stimulus monies, Colorado's unemployment compensation laws had to be changed, so as to provide benefits to certain individuals who would not have otherwise qualified.  Among other things, Senate Bill 247, signed by Governor Ritter on June 2, 2009, does that. 

Individuals who quit their jobs to relocate to a new place of residence with a spouse whose employment location has changed now will be entitled to benefits, provided the new place of residence is not at a distance from which the employee could practicably commute.  Benefits also will be available for an individual who quits to care for an ill or disabled family member who requires care beyond the employee's FMLA or other leave entitlements.  Benefits also will be available for a worker who separates from employment due to domestic violence when the employee reasonably believes that continued employment jeopardizes his or her safety or the safety of his or her family.

SB 247 also provides enhanced benefits to individuals who are receiving unemployment benefits and making satisfactory progress in a training program.

SB 258: Employee leasing companies and unemployment insurance benefits

Under previous Colorado law, an employee leasing company was considered the sole employer of its employees for unemployment tax purposes.  Senate Bill 258, signed by Governor Ritter on May 14, 2009, eliminated that statutory provision. 

Employee leasing companies now have the option to report taxes (a) as the employing unit of an employee, or (b) under the respective unemployment accounts and tax rates for the worksite employer to which an employee is assigned. 

An employee leasing company has until the end of the calendar quarter after this bill becomes effective-August 5, 2009-to make its election.  If no election is made, the employee leasing company must report taxes under the accounts and tax rates of each worksite employer.

If an employee leasing company elects to report as the employing unit, the election is not permanent; it may change its election one time.  However, if it elects to report under the accounts and rates of the worksite employers, that choice is irrevocable.

HB 1108: Failure of employer's bank to honor paycheck

This bill, signed into law by Governor Ritter on April 22, 2009, and effective as of August 5, 2009, amends the Colorado Wage Act, so as to subject an employer to a $50-per-day penalty when the employer's bank refuses to honor an employee's paycheck.  A condition of this penalty is that the employer's bank refuses to honor employee paychecks two or more times within a 24-month period.

An employee whose paycheck is not paid by the employer's bank can recover damages equal to triple the amount of the check, as well as actual damages resulting from the nonpayment, including late fees.

The purpose of the bill was to crack down on employers writing bad checks to employees, a problem compounded by these difficult economic times when many families are living paycheck to paycheck.

Sherman & Howard has prepared this advisory to provide general information on recent legal developments that may be of interest. This advisory does not provide legal advice for any specific situation. This does not create an attorney-client relationship between any reader and the Firm. If you want legal advice on a specific situation, you must speak with one of our lawyers and reach an express agreement for legal representation.

© 2009 Sherman & Howard L.L.C.                                                       June 5, 2009