The Colorado General Assembly and Department of Labor and Employment are having a big year implementing new laws and guidance impacting many employers and employees.
Mike Bell, a shareholder and employment lawyer with Ogletree Deakins which has an office in Denver, said many issues came up including sick leave. He said under the Healthy Families and Workplaces Act there had been a lot of confusion concerning the carryover from year to year of paid sick leave. It essentially required 48 hours of paid sick leave per year, but questions remained concerning accrual.
“It had the potential to create this strange situation of employees who weren’t actually using much sick leave, having those total accrual balances keep rising over time as they’re carried over from year-to-year, with only ever being able to use 48 hours of it in a given year,” Bell said.
This new CDLE guidance clears that up, meaning you can only use 48 in a year and it doesn’t combine with the previous year. For example, if you used eight hours in 2022, you can only gain eight more in 2023.
A supplement in the guidance regarding public health emergencies was also clarified, concerning the 80 hours an employee can get when a public health emergency is declared. Under this rule, the employer takes whatever sick time the employee has and adds enough so the employee has 80 hours.
A bill connected with the pandemic was also approved by the General Assembly. It dealt with the whistleblowers concerning public health and safety. Previously, that law provided whistleblower protections for those who raised concerns connected to a public health emergency. The bill has now been expanded to include all health and safety concerns, not just during a health emergency.
The General Assembly also approved a law dealing with wage theft. The penalties went up to two to three-times depending on the violation. Under the new law, the employer gets hit with automatic penalties the greater of two-times the amount of unpaid wages or $1,000 on an employer failing to pay all past-due wages within 14 days after the employer is served. If the employee can show the employer’s failure or refusal to pay wages was willful, that employer could be subject to penalties equal to the greater of three times the amount of unpaid wages or $3,000.
The bill also fleshes out repeat offenders. An employer’s second or subsequent failure or refusal to pay wages of the same or similar type within the past five years is considered automatically willful.
“That’s quite a long period of time to go back … over the course of five years many times payroll departments change over and managers change over; there certainly can be a totally different regime that could be in place during that five-year period,” Bell said.
The General Assembly also took on employment discrimination. One of the provisions that changed was how long it takes for an employee to file a complaint. It used to be six months, but now it’s 300 days.
“One very important distinction is that, under the previous statute … for age claims, they were treated a little bit differently,” Bell said. He continued saying Colorado used to follow the federal statute which includes damages like double back pay, but didn’t have punitive or compensatory damages, which you now can get under state law.
“What kind of remains to be seen is what the courts are [going to] do … because very frequently plaintiffs will bring claims under both right, under the state claim and the federal law,” Bell said. “So we’ll have to see what courts will do with successful plaintiffs. Is there a potential here for a double recovery or is it [going to] be — you have to elect your remedy situation, whatever the better of the two remedies are.”
One other significant guidance being implemented by the CDLE involves meal and rest breaks. As for rest breaks, they need to be deemed hours worked so they go on a pay statement. The CDLE will also look at case-by-case analysis for meal periods. Normally you get a meal break if your shift exceeds five consecutive hours, unless that is impractical at the job you work at — in those cases you can eat your lunch on the clock.
“I think the agency was seeing perhaps too many employers … have that be a blanket rule, we’re just not going to provide meal periods, everybody just kind of eat on the clock,” Bell said.
With all these new regulations, has it become more difficult to do business in the state?
“In the past three years, I would say Colorado has seen more employment law changes than perhaps any other state in the Union,” Bell said. “And it’s an increasingly challenging place for an employer from a compliance standpoint.”