Recent Legislative Proposals and Implications for Employers

In recent years, Colorado has sought to expand worker protections. For example, the Equal Pay for Equal Work (EPEW) Act and Healthy Families and Workplaces Act (HFWA) went into effect at the beginning of 2021. In 2020, the Colorado Overtime and Minimum Pay Standards (COMPS) Order also became effective. All three have significant implications for employee pay, benefits, and leave. They are also part of a wider trend to ensure worker protections in Colorado. For the 2021 session, the legislature introduced numerous other bills that follow this trend. Several, like their predecessors, could also have substantial effects on employee rights and employer compliance with many new requirements. A few of these are discussed below.

SB21-039: Elimination Of Subminimum Wage Employment
SB21-039 is Colorado's attempt to address the "subminimum wage" currently allowed under the federal Fair Labor Standards Act (the FLSA). The FLSA permits employers to obtain a special certificate to pay certain employees a "subminimum wage.¹" These include workers "whose earning or productive capacity is impaired by age, physical or mental deficiency, or injury.²" SB21-039 is part of a bipartisan effort to eliminate the FLSA's subminimum wage provision. It phases out the special certificate and provides for a transition period; thus, if the bill is passed, employers who currently pay a subminimum wage would submit a transition plan to the Colorado Department of Labor and Employment and explain how they would raise their wages. SB21-039 has garnered support from disability advocacy groups, but whether it will obtain broader support remains to be seen. 

HB21-1110 also strengthens protections for the disabled, but it pertains more to public accommodations. For example, it prohibits a person with a disability from being excluded or denied the services, programs, or activities of a public entity, and it clarifies Colorado cannot promulgate rules that provide less protection than the Americans with Disabilities Act. 

SB21-087: Agricultural Workers' Rights
SB21-087 addresses an agricultural exemption from Colorado's collective bargaining, minimum wage, and other worker protection laws. First, the Colorado Labor Peace Act, C.R.S. § 8-3-101 et seq., governs unions and collective bargaining in Colorado. The Labor Peace Act currently excludes individuals employed in farm and ranch labor³. If passed, SB21-087 would eliminate this exemption. It would therefore allow farm, ranch, and other agricultural workers to unionize and engage in other concerted activity. 

Colorado's minimum wage contains a similar exemption for agricultural workers. SB21-087 addresses this exemption, as well. It would: 

1. eliminate an agricultural exemption from Colorado's minimum wage laws;
2. grant agricultural workers meal and rest periods similar to those enacted through the COMPS Order; and
3. provide overtime to pay to agricultural workers who work over 40 hours per week or over 12 hours in one day. 

The bill is sponsored by Democrats and supported by immigrant, Latino rights, and labor organizations. However, large agricultural groups like the Colorado Farm Bureau and Rocky Mountain Farmers Union will likely oppose the bill. 

HB21-1108: Gender Identity Expression Anti-discrimination
Finally, HB21-1108 expands the protections in Colorado's Anti-Discrimination Act (CADA). CADA prohibits discrimination, harassment, or retaliation in employment; it is Colorado's state version of the federal Title VII. In its present form, CADA prohibits discrimination or retaliation on the basis of protected characteristics including race, sex, religion, national origin, and disability⁴. If passed, HB21-1108 would expand its protections to gender expression and gender identity. “Gender expression” is defined as “an individual’s way of reflecting and expressing the individual’s gender to the outside world, typically demonstrated through appearance, dress, and behavior.” “Gender identity” is defined as “an individual’s innate sense of the individual’s own gender, which may or may not correspond with the individual’s sex assigned at birth.” Thus, the proposed revisions to CADA clarify that “gender” and “sex” are broad enough to include gender identity and expression.

These are important issues to monitor. If passed, an employee who believes they were discriminated against based on gender identity or expression would be entitled to CADA’s full procedures, including submitting Charges of Discrimination to the Colorado Civil Rights Division and a possible lawsuit. HB21-1108 also expands other provisions of CADA, including discrimination in housing and public accommodations. HB21-1108 is expected to have a good chance of becoming law. 

Several other statutes pertain to business and employer interests:

• HB21-1065 creates a statutory basis for private employers to give preference to a veteran or spouse of a veteran who has been disabled or killed in the line of duty.
• SB21-077 removes the requirement for the Department of Regulatory Agencies to verify that someone is lawfully present in the United States as a condition for receiving professional licenses.
• SB21-080 provides protection to businesses from liability related to exposure, injury, infection, or death arising from COVID, unless a claimant can prove the injury by clear and convincing evidence. If passed, the bills’ protections would expire two years after the termination of the March 2020 state of emergency.
• HB21-1050 updates certain workers’ compensation laws.

These comprehensive bills could alter workplace practices if passed. Please contact the Employment Group to learn how they could affect your business and what steps you should take in preperation.

¹ See 29 U.S.C. § 214.
² 29 U.S.C. § 214(c)(1).
³ C.R.S. § 8-3-104(11)(a).
⁴ C.R.S. § 24-34-402(1)(a).