Additional Remedies in Employment Discrimination Cases
On May 6, 2013, Colorado enacted the Job Protection and Civil Rights Enforcement Act of 2013. The law allows compensatory and punitive damages to be awarded in cases where intentional discrimination is found, for unfair employment practices occurring on or after January 1, 2015. Punitive damages may be awarded when the plaintiff proves malice or reckless indifference by clear and convincing evidence. Compensatory and punitive damages are capped for small employers, and courts must consider the employer’s size and assets when assessing damages.
Additionally, the new law allows the courts to award attorney’s fees to a prevailing plaintiff. For employers to receive attorney’s fees, the court must find the claim to have been frivolous, groundless or vexatious.
Family Care Act Expands Leave
Effective August 7, 2013, Colorado employees in civil unions or domestic partnerships became eligible to take expanded leave to care for a significant other who has a serious health condition. Colorado House Bill 13-1222, known as the Family Care Act, allows an eligible employee to take up to 12 weeks of leave in a 12 month period to care for the employee’s recognized partner in a civil union or the employee’s recognized domestic partner.
Restriction on Employers’ Use of Consumer Credit Information
Colorado Senate Bill 13-018 restricts employers’ abilities to use a prospective or current employee’s consumer credit information to evaluate the employee. Effective July 1, 2013, employers may no longer request an employee’s credit information or use that information to evaluate an employee, except in limited circumstances. “Consumer credit information” is defined as “information bearing on a consumer’s creditworthiness, credit standing, credit capacity, or credit history,” and includes a credit score.
Employers may use credit information to evaluate an employee if that employee’s current or potential job falls under either one of two categories – 1) executive or management personnel with certain financial or fiduciary responsibilities, or 2) a position involving defense or national security contracts. If, under these exceptions, an employer does use that employee’s credit information, the employer must disclose its use and must offer the employee an opportunity to explain adverse credit information.
Under the new law, the Colorado Department of Labor and Employment (CDLE) is required to investigate complaints, hold hearings on individual complaints, and issue findings within 30 days of the hearing. CDLE may award up to $2,500 in civil penalties for violations.
Social Media Access
On May 1, 2013, Colorado House Bill 13-1046 became effective, prohibiting employers from requiring current or prospective employees to disclose user names or passwords to personal accounts on the employee’s personal electronic communications device. Additionally, employers may not require an employee to change the privacy settings on the employee’s social networking account, nor require them to add anyone, including the employer, to a list of contacts associated with any social media account. The law does not apply to nonpersonal accounts or services that provide access to the employer’s internal computer or information systems.
The CDLE is required to investigate complaints, hold hearings on individual complaints, and issue findings within 30 days of the hearing. CDLE may award up to $1,000 in civil penalties for the first violation, and up to $5,000 for any subsequent violations.
Collective Bargaining by Professional Firefighters
Effective June 5, 2013, the public in any municipality, special district, or county may vote to allow professional firefighters to enter into collective bargaining agreements (CBAs) with the public employer serving that political subdivision. Colorado Senate Bill 13-025 applies only to professional firefighters, not to volunteers.
If the voters approve such an arrangement, then that jurisdiction’s professional firefighters may form collective bargaining units and elect representatives. The law requires the public employers to meet and confer with the firefighters’ representatives on policies and other matters relating to their employment, including safety and equipment, but not including compensation.
In the event negotiations reach an impasse, the unresolved issues will be submitted to arbitration, and both sides will split the fees. Under a CBA, firefighters are prohibited from striking. However, any firefighter or firefighter’s organization may bring suit in district court to enforce any provision of a CBA.
Minimum Wage Raise in 2014
Colorado Minimum Wage Order 30 went into effect on January 1, 2014, setting the state’s minimum wage at $8.00 per hour.
What Can We Expect This Year?
Like last year, the Democratic Party has the majority in both the state House and Senate. But, this year, the Senate is split 18-17, and the smaller majority may have a large impact on negotiations. With the Democratic majority in both houses, we can expect to see legislation aimed at expanding workers’ rights and limiting the abilities of employers to make significant business and personnel decisions.