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12/30/2013

Gordon & Rees 2013 Year-End Colorado Employment Law Update

New Minimum Wage

2013 Colorado Minimum Wage - $7.78 an hour / $4.76 an hour for tipped employees

2014 Colorado Minimum Wage - $8.00 an hour / $4.98 an hour for tipped employees

(effective Jan. 1, 2014)

Colorado Civil Union Act

On March 21, 2013, Gov. John Hickenlooper signed the Colorado Civil Union Act into law, authorizing two unmarried adults, regardless of gender, to enter into a civil union.  Effective May 1, 2013, the new Colorado law grants individuals in a civil union “the rights, benefits … and other incidents under law as are granted to spouses, whether those rights are derived from statute, administrative or court rule, policy, common law or any other source of law.”  Among other rights, protections, and benefits, of central importance to employers, the new law sets out the following:

  • Health insurance policies and life insurance policies issued in Colorado must offer same-sex civil union partners the same coverage as married spouses. However, group health insurance plans are not required to allow civil union partners to be enrolled until Jan. 1, 2014, or the first renewal after that date, if later.
  • Parties to a civil union are entitled to dependent coverage under health and life insurance policies for plans issued, delivered, or renewed on or after Jan. 1, 2014.
  • Discrimination based on spousal status is prohibited.
  • If an employer is not subject to the Family and Medical Leave Act (FMLA), but provides a similar type of leave as a benefit to its employees on its own volition, that benefit must extend to civil union partners.

Employers should update their policies, forms, and practices to comply with the Civil Union Act. 

DOMA Decision Expands Entitlement to FMLA

On June 26, 2013, in United States v. Windsor, the U.S. Supreme Court invalidated Section 3 of the Defense of Marriage Act (DOMA). Section 3 provided that, in any federal statute, the term "marriage" means only a legal union between one man and one woman as husband and wife, and that "spouse" refers only to a person of the opposite sex who is a husband or a wife.  

The FMLA allows employees to take job-protected leave for certain family and medical reasons, including time to care for a spouse who has a serious health condition or for activities related to a spouse’s military deployment.  The Department of Labor (DOL) has issued updated guidance stating that, for purposes of the FMLA, “spouse” means a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides.  Same-sex marriages are lawful in California, Connecticut, Delaware, Iowa, Massachusetts, New Hampshire, Maine, Maryland, Minnesota, New York, Rhode Island, Vermont, Washington, and the District of Columbia.  Thus, employers with operations in those states should update their FMLA leave policy, forms, and practices to include same-sex marriage.  Colorado recognizes civil unions, but not same-sex marriage, so the decision does not directly affect Colorado employers (but see below). 

The Family Care Act

Effective Aug. 7, 2013, the Family Care Act expands the definition of an “immediate family member” for whom Colorado employees are entitled to take leave from work under the federal FMLA to include a domestic partner or civil union partner.  This law does not alter the other requirements or limitations of the federal FMLA.  

All Colorado employers should update their FMLA policy, forms, and practices to incorporate spousal leave benefits for recognized domestic partners and civil unions.

Restrictions on Use of Credit Info

Effective July 1, 2013, Colorado became one of nine states to pass legislation that restricts an employer’s ability to perform credit checks on job candidates and employees. Colorado’s Employment Opportunity Act applies to private employers with four or more employees that inquire into or request consumer credit information on individuals for employment purposes.  The act prohibits an employer’s use of consumer credit information for employment purposes unless the information is substantially related to the individual’s current or potential job.  The act provides some clarification as to what is “substantially related.”

  • A position that constitutes executive or management personnel and involves one or more of the following:
    • sets the direction or control of a business, division, unit or an agency of the business;
    • owes a fiduciary responsibility to the employer;
    • has access to customers’, employees’, or the employer’s financial information; or
    • has the authority to make payments, collect debts, or enter into contracts.
  • A position that involves contracts with intelligence, national security, defense, or space agencies of the federal government.

The act does not apply to banks, financial institutions, or employers that are required by law to conduct credit checks.  Employers should review policies regarding the use of checks to determine if they are “substantially related” to the job.

The Background Check Battle Heats Up

In an EEOC Enforcement Guidance dated April 5, 2012, the U.S. Equal Employment Opportunity Commission clarified its position that a potential employee should not be turned down solely because of a prior conviction.  The guidance encourages employers to use a two-step process.  First, it calls for employers to use a "targeted" screen of criminal records.  A "targeted" screen considers "at least the nature of the crime, the time elapsed, and the nature of the job (the three factors identified by the court in Green v. Missouri Pacific Railroad, 549 F.2d 1158 (8th Cir. 1977)).   Second, after employers administer the targeted screen, the guidance encourages employers to provide opportunities for individualized assessment for those people who are screened out.  According to the EEOC, using individualized assessment in this manner provides a way for employers to ensure that they are not mistakenly screening out qualified applicants or employees based on incorrect, incomplete, or irrelevant information, and for individuals to correct errors in their records.

On June 11, 2013, the EEOC filed class-action lawsuits against Dollar General and BMW, alleging that the use of criminal background checks to disqualify applicants has a disparate impact on minorities. Eliminating barriers in recruitment and hiring, especially class-based recruitment and hiring practices that discriminate against racial, ethnic and religious groups, older workers, women, and people with disabilities, is one of six national priorities identified by the Commission's Strategic Enforcement Plan (SEP).  By filing the lawsuits, the EEOC has shown that it will aggressively litigate this issue.

On July 24, 2013, Colorado’s attorney general, along with eight other states’ attorneys general, sent the EEOC chair and commissioners a strongly worded letter indicating concerns over the EEOC’s position on criminal background checks.  The letter described the EEOC’s position on the matter as an improper intrusion upon states’ rights.  The attorneys general contend that the EEOC is improperly attempting to expand Title VII coverage to “former criminals,” a group that Title VII is not intended to cover.  The attorneys general took up the banner for employers by explaining that employers have legitimate, job-related concerns that necessitate the use of criminal conviction policies, such as automatic disqualification from employment for those who have been convicted of serious crimes.  The letter explains the tie between criminal convictions and indicia of dependability, reliability, and trustworthiness.  

Nonetheless, the “Ban the Box” movement, which seeks to outlaw the check-box that asks about an applicant’s criminal record, is gaining traction.  Ten states and more than 50 U.S. cities have passed “Ban the Box” legislation, making it illegal to ask prospective employees about their criminal history until they are selected for an interview or given a conditional job offer.  Colorado has passed “Ban the Box” legislation that applies to public sector employers.  In October 2013, Target Corp., the nation’s second-largest retailer, announced that it will remove questions about criminal history from all of its job applications.

In light of the EEOC Enforcement Guidance and its aggressive enforcement actions, employers should review policies regarding the use of criminal background history in the context of the particular job. 

Social Media and the Workplace Law (the “Facebook Law”)

Effective May 11, 2013, Colorado’s Social Media and the Workplace Law (C.R.S. § 8-2-127), restricts employers’ ability to access employees’ or applicants’ social media accounts in several ways.  First, employers may not request employees’ or applicants’ social media user names and/or passwords or other means for accessing their personal accounts.  Second, employers may not compel employees or applicants to add anyone to their list of contacts.  Third, employers may not require employees or applicants to change privacy settings associated with a social networking account.

The Colorado law does not prevent an employer from conducting an investigation to ensure compliance with applicable securities or financial law or regulatory requirements based on the receipt of information about the use of a website, web-based account, or similar account by an employee for business purposes. Nor does the law prevent an employer from investigating an employee’s electronic communications based on the receipt of information about the unauthorized downloading of an employer’s proprietary or financial information. A first-time violation of the law will include a fine up to $1,000.  Subsequent offenses may result in a fine up to $5,000.

Arkansas, California, Colorado, Illinois, Maryland, Michigan, Nevada, New Mexico, Oregon, Utah, and Washington all have state social media laws.  Employers with operations in multiple states must be certain that their policies comply with each state’s law. 

Keep Jobs in Colorado Act

On May 24, 2013, Colorado Gov. John Hickenlooper signed the Keep Jobs in Colorado Act, a bill designed to minimize the outsourcing of public projects and keep jobs in Colorado.  The act’s aim is to reform the state’s contracting system, which already requires 80 percent of workers on publicly funded construction projects to be Colorado residents.  Prior to this act, the 80 percent requirement was rarely, if ever, enforced because the penalty for employers that violated the law was jail time. 

The act removes criminal offense for noncompliance and creates a series of civil penalties that could lead to suspension or revocation of a contractor’s license whenever the 80 percent threshold is not met.  State agencies can waive the 80 percent rule if contractors can show there is not sufficient Colorado labor available for a project. The act also requires many contractors to provide proof of the country of origin for materials used in projects. 

New FCRA Forms and Enforcement Agency

As of Jan. 1, 2013, the Fair Credit Reporting Act (FCRA) requires the use of three new forms:

  1. Summary of Consumer Rights;
  2. Notice to Users of Consumer Reports of Their Obligations; and 
  3. Notice to Furnisher of Information of Their Obligations.  

The new forms are available at http://www.gpo.gov/fdsys/pkg/FR-2012-11-14/pdf/2012-27581.pdf.  In addition, the newly created Consumer Financial Protection Bureau (CFPB) is the enforcement agency for the FCRA as of Jan. 1, 2013.  

Failure to comply with any of the FCRA’s requirements may subject employers to lawsuits seeking actual damages, statutory damages (assessed at $100-$1,000 per violation), attorneys’ fees, and punitive damages.  These issues are often raised in a class action brought on behalf of all individuals impacted by the violation.

New FMLA Poster and Forms

Effective March 8, 2013, employers must post the new FMLA poster, reflecting the 2013 regulations, and use updated FMLA notice and certification forms. The DOL model forms can be found on its website at http://www.dol.gov/whd/fmla/2013rule/militaryforms.htm

New I-9 Forms

Effective May 7, 2013, employers are required to use a new Employment Eligibility Verification Form I-9.  The new form is available from the U.S. Citizenship and Immigration Services website at http://www.uscis.gov/files/form/i-9.pdf. Employers that have not already switched to the new form should do so now. 

Employment Law

Heather M. Gwinn Pabon
John D. Keen
Laurie J. Rust



Employment Law
Labor

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