May 1, 2016

HB 16-1438: Requiring Reasonable Employment Accommodations for Pregnancy-Related Conditions

On April 12, 2016, Rep. Faith Winter and Sen. Beth Martinez Humenik introduced HB 16-1438Concerning the Provision of Reasonable Accommodations by an Employer for Persons who have a Condition Related to Pregnancy. The bill was assigned to the House Health, Insurance, & Environment Committee.

Under this bill, an employer shall: (1) provide reasonable accommodations to perform the essential functions of the job to an applicant or employee for health conditions related to pregnancy; (2) not take adverse action against an employee who requests or uses a reasonable accommodation; (3) not deny employment opportunities based on the need to make reasonable accommodations; (4) not require an applicant or employee affected by pregnancy to accept an accommodation that the applicant or employee chooses not to accept; (5) not require an employee to take leave if the employer can provide another reasonable accommodation for the employee’s pregnancy; (6) engage in an interactive process with the employee to determine effective reasonable accommodations; and (7) post written notice in a conspicuous place accessible to employees of the right to be free from said discriminatory or unfair employment practices. It is a discriminatory or unfair employment practice if an employer fails to comply with the provisions of this bill.

The bill defines “reasonable accommodations” by providing a non-exhaustive list of possible changes to an employee’s daily activity, but then states that an employer is not required to do any of the following: (1) hire new employees; (2) discharge an employee, transfer a senior employee, or promote an unqualified employee; (3) create a new position; or (4) provide paid leave beyond that which is provided to similarly situated employees.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

HB 16-1388: Prohibiting Certain Employers from Inquiring Into Applicants’ Criminal Records

On March 16, 2016, Rep. Beth McCann introduced HB 16-1388Concerning the Timing of Inquiring into a Job Applicant’s Criminal History. The bill was assigned to the House Judiciary Committee, where it passed unamended and referred to Appropriations.

This bill prohibits any employer who has four or more people regularly engaged in the same business or employment from engaging in certain practices related to the screening of potential employees’ criminal records. For the purposes of the bill, “employer” does not include state, local, or quasi-governmental entities.

An employer shall not:

  1. State in an advertisement or application for employment that a person with a criminal history may not apply; or
  2. Inquire into or require disclosure of an applicant’s criminal history until the applicant has been determined qualified for the position and notified that the applicant has been selected for an interview, or if there is not an interview, until after a conditional offer of employment is made.

An employer is exempt from these restrictions if:

  1. A law prohibits the employment of a person with a specific criminal conviction;
  2. A law requires the consideration of an applicant’s criminal history;
  3. The position is designed for participation in a government program to encourage the employment of people with criminal histories; or
  4. The position requires a fidelity bond, and a specific criminal conviction would disqualify the applicant from obtaining the bond.

An employer who violates the bill is liable for one of the following penalties: (1) first offense: warning and an order requiring compliance within 30 days; (2) second offense: civil fine not exceeding $500 (for employers with more than 14 employees, not exceeding $1,000); or (3) third or subsequent offense: civil fine not exceeding $1,000 (for employers with more than 14 employees, not exceeding $2,500)

The bill does not create or authorize a private cause of action by a person aggrieved by a violation of its provisions, although an aggrieved individual may file a complaint with the Department of Labor and Employment.

Employers shall retain employment applications for nine months after submission to the employer, and employers shall allow the Department of Labor and Employment to inspect said employment applications.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

Trait-Based Protection Under the ADAAA

roberto-corrada-fullBy Roberto Corrada, Professor
University of Denver Sturm College of Law

Professor Susan Carle of American University Law School thinks the “regarded as” prong of the ADA may be severely underutilized by plaintiffs seeking to challenge their termination. According to Carle, who delivered a lunch keynote address at the 2016 Colorado Bar CLE annual employment law conference, the ADAAA of 2009 amended the ADA in a way that greatly increased the potential effectiveness of the “regarded as” prong. The ADAAA, first, freed the “regarded as” prong of the requirement that the disability the employer regards an employee as having must significantly impair a major life activity. Employers now only have to “regard” an employee as having some impairment for the employee to be protected by the ADA. To balance this out, Carle emphasizes, the ADAAA did limit the “regarded as” prong a bit. So, the prong does not protect transitory or minor disabilities and the “regarded as” prong does not support requests for accommodation.

Professor Carle explains that it’s fairly clear now what is protected, but there’s a bit of ambiguity around how far the new protection goes. With respect to what is clear, if an employee has an injured back, but has a medical release to go back to work (can perform the essential functions of the job) and the employer says no, the employee is likely protected. Also, if an employee has an anxiety disorder and the employer finds the employee annoying (even though the employee can perform essential functions) and fires the employee, the employee is likely protected. Professor Carle, though, is interested in knowing whether the ADA might extend far enough to protect certain traits. For example, what if an employee has no diagnosed disability or has a disability that has not been disclosed to the employer? If the employer then looks at an employee “trait” that the employee possesses and “regards it as” a disability or impairment, is the employee protected by the ADA? For example, an employee suffers from depression and as a result fails to participate in workplace social gatherings or attends, but just sits in the corner. Is the employee protected from termination by the ADA “regarded as” prong?

Professor Carle believes that the ADA “regarded as” prong “can be of special help to persons with ambiguous or hidden impairments because it may very often be the very perception of ‘something weird/different/not right’ about the person that causes a negative reaction or discrimination rather than any limitation in relevant job-related abilities.” The big question is whether an employer who regards an employee as having a “social disorder” based on a trait is prohibited from acting on that trait in disciplining or terminating the employee? Does the trait have to be an effect of an actual disability or impairment? Professor Carle will attempt to make her case in an upcoming issue of the University of California Davis Law Review. Professor Carle’s argument does have some hope for unleashing the progressive potential of the ADA. After all, a foundational policy of the ADA is to have employers focus on the essential functions of the job in making employment decisions rather than indulging personal biases.

 

CLE Homestudy — Employment Law Conference 2016: Proactively Prepare for What Lies Ahead

This CLE presentation took place Wednesday, April 20, 2016, and Thursday, April 21, 2016. Order the homestudy here: CDMP3 audio.

 

Roberto Corrada, Mulligan Burleson Chair in Modern Learning and Professor at the University of Denver Sturm College of Law, has devoted his scholarly attention to three primary areas: the rights of ethnic and sexual minorities; the public/private distinction in labor and employment law; and the scholarship of teaching and learning. A distinguished teacher, Corrada has been recognized for his innovative work in the classroom. He has received several awards, and was named a national Carnegie Scholar in 2000. He is also extensively involved in service work with local and national institutions, including chairing the board of the ACLU of Colorado in 1998 and helping form the Denver Urban Debate League, serving now on the Board of Directors.

Tenth Circuit: H-2A Sheepherders Must Primarily Tend Sheep in Pastures

The Tenth Circuit Court of Appeals issued its opinion in Saenz Mencia v. Allred on Monday, December 14, 2015.

German Wilmer Saenz Mencia, a citizen of Peru, came to Utah to work on the Allreds’ sheep ranch under an H-2A sheepherder visa, and was paid $750 per month plus room and board, the minimum for sheepherders. He brought claims in district court, arguing that the work he performed did not qualify as sheepherding and instead he was entitled to the hourly wage for ranch hands. Mr. Saenz asserted claims in contract and quantum meruit for the lost wages and FLSA minimum wage claims against the Allreds. The district court rejected Mr. Saenz’s claims, denied his summary judgment motion, and granted summary judgment to the Allreds. Mr. Saenz appealed.

The Tenth Circuit first analyzed the H-2A definition of sheepherding and the FLSA definition of range production of livestock. The Tenth Circuit determined that to fit the definitions, Mr. Saenz must have spent over half of his time on the range tending to the sheep and must have extremely variable hours, described as “the constant surveillance of livestock that graze and reproduce on range lands.” The Tenth Circuit found that there was no plausible reading of the definitions that would render Mr. Saenz a sheepherder. Mr. Saenz worked in the vicinity of ranch headquarters where the Allreds could see what he was doing and ask him to help with odd jobs. Mr. Saenz did work with sheep, but they did not graze; they were fed hay. The Tenth Circuit concluded that Mr. Saenz did not work on the range as contemplated by the definitions. The Tenth Circuit found further evidence in the fact that the Allreds and Mr. Saenz were easily able to approximate his hours, and that most of his jobs were incidental to sheepherding. The Tenth Circuit found that Mr. Saenz was a ranch hand, not a sheepherder.

The Tenth Circuit next examined the district court’s finding that Mr. Saenz’s claims were estopped. The district court found that because Mr. Saenz never complained of being underpayed while employed by the Allreds, he was estopped from bringing claims in court. The Tenth Circuit disagreed. The Allreds were employers of more than a dozen H-2A sheepherders, and had obtained the H-2A visas for their employers by vouching for the type of work they would do. The Tenth Circuit concluded the Allreds had both actual and constructive knowledge of the nature and location of Mr. Saenz’s work and rejected their equitable estoppel claim. The Tenth Circuit held that the Allreds had easy access to lawyers and were in the business of importing laborers, and they were therefore not entitled to equitable estoppel under Utah law.

The Tenth Circuit addressed each of the Allreds’ six alternative grounds on which they asked the court to affirm and found none convincing. The Tenth Circuit reversed the district court’s grant of summary judgment to the Allreds and directed it to grant summary judgment to Mr. Saenz. The Tenth Circuit remanded for a calculation of damages and any other proceedings necessary.

Bills Implementing “SAFE Act,” Allowing Issuance of Summonses in Lieu of Warrants, and More Signed

On Thursday, April 21, and Friday, April 22, 2016, Governor Hickenlooper signed more bills into law. He signed 19 bills on Thursday and five bills on Friday. To date, the governor has signed 141 bills this legislative session. Some of the bills signed Thursday and Friday include a bill to limit the imposition of conditions by federal entities on Colorado water rights, changing the statutory purpose of parole in order to facilitate integration into society for parolees, limiting laws governing security interests in business entities, and more. The bills signed Thursday and Friday are summarized here.

Thursday, April 21, 2016

  • HB 16-1035 – Concerning the Scope of Statutes Making the Issuance of Securities by a Public Utility Conditional on Approval by the Colorado Public Utilities Commission, and, in Connection Therewith, Clarifying that the Approval Requirement Applies Only to Electric and Gas Utilities, by Rep. Timothy Leonard and Sen. Ray Scott. The bill clarifies that only public electric and gas utilities are required to apply to the Public Utilities Commission for approval to issue or assume securities.
  • HB 16-1060 – Concerning Roadside Memorials for Fallen State Patrol Officers, by Rep. Max Tyler and Sen. Randy Baumgardner. The bill requires CDOT to erect and maintain a permanent roadside memorial for every Colorado State Patrol officer who has perished on the highway in the line of duty.
  • HB 16-1093 – Concerning the Use of the National Change of Address Database to Maintain Voter Registration Records, and, in Connection Therewith, Clarifying Terminology and Consolidating Procedures for County Clerks and Recorders to Follow when it Appears that an Elector has Moved Within the State, by Reps. Kim Ransom & Su Ryden and Sen. Jack Tate. The bill changes the process that must be followed by county clerks to confirm a voter address if the monthly search determines that a voter may have moved.
  • HB 16-1104 – Concerning the Issuance of a Summons in Lieu of a Warrant for Certain Non-Violent Offenders, by Rep. Kit Roupe and Sen. John Cooke. The bill allows law enforcement officers to issue a summons in lieu of a warrant if the officer believes there is a reasonable likelihood the defendant will appear, the local district attorney approves and has developed criteria for the procedure, the defendant has had no felony arrests in the past five years, there is no allegation that the defendant used a deadly weapon, and there are no outstanding warrants for the defendant’s arrest.
  • HB 16-1109 – Concerning that the Basic Tenets of Colorado Water Law Place on the Ability of Certain Federal Agencies to Impose Conditions on a Water Right Owner in Exchange for Permission to use Federal Land, by Reps. KC Becker & Jon Becker and Sens. Jerry Sonnenberg & Kerry Donovan. The bill states that Colorado water is a transferable property right and that the federal government must comply with state law, through the water court process, to acquire water rights.
  • HB 16-1141 – Concerning the Protection of Colorado Residents from the Hazards Associated with Naturally Occurring Radioactive Materials in Buildings, and in Connection Therewith, Making an Appropriation, by Reps. KC Becker & Don Coram and Sens. Cheri Jahn & Ellen Roberts. The bill requires the Colorado Department of Public Health and Environment to establish a radon education and awareness program to provide information and education statewide to citizens, businesses, and others in need of information, and requires that, by January 1, 2017, the CDPHE stablish a radon mitigation assistance program to provide financial assistance to low-income individuals for radon mitigation services.
  • HB 16-1153 – Concerning the Annual Date by which the General Assembly Receives a Report Regarding Outcomes of Decisions Made by the State Board of Parole, by Rep. Jovan Melton and Sen. John Cooke. The bill extends the deadline by which reports on parole outcomes made by the State Board of Parole and the Division of Criminal Justice are required from November 1 to March 31.
  • HB 16-1173 – Concerning the Continuation of the Regulation of Vessels by the Department of Natural Resources, by Rep. Diane Mitsch Bush and Sen. Ray Scott. The bill indefinitely removes the sunset of the Vessel Registration Program conducted by the Department of Regulatory Agencies to continue the registration and regulation of vessels program by Colorado Parks and Wildlife in the Department of Natural Resources.
  • HB 16-1198 – Concerning Computer Science Courses Fulfilling Certain Graduation Requirements, by Reps. Dan Pabon & Jim Wilson and Sens. Jack Tate & Andy Kerr. The bill encourages school districts to treat computer science and coding classes as mathematics or science courses and count completion of such computer-related courses toward the fulfillment of any mathematics or science graduation requirements.
  • HB 16-1215 – Concerning Changing the Statutory Purposes of Parole to Successfully Reintegrate Parolees into Society by Providing Enhanced Supportive Services, by Reps. Beth McCann & Daniel Kagan and Sen. Lucia Guzman. The bill redefines the purpose of parole to enhance public safety by reducing recidivism, select and prepare individuals who will be transitioned into the community, set individualized conditions of parole, and achieve a successful discharge from parole.
  • HB 16-1230 – Concerning the Inclusion of a County’s Financial Information in the State’s Financial Information Database, which is known as the Transparency Online Project, by Rep. Timothy Dore and Sen. John Cooke. The bill requires counties to provide the state Chief Information Officer with a copy of the county’s adopted budget no later than 30 days after the fiscal year begins, starting January 1, 2018.
  • HB 16-1255 – Concerning Additional Methods to Manage Forests to Secure Favorable Conditions for Water Supply, by Reps. Don Coram & Ed Vigil and Sen. Randy Baumgardner. The bill directs the Colorado state forest service to conduct demonstration pilot projects to implement forest management treatments that improve forest health and resilience, supply forest products to Colorado businesses, and target a Colorado watershed.
  • HB 16-1258 – Concerning the Posting by Court Clerks of Process When a Respondent is Served by Publication, by Rep. Jovan Melton and Sen. Kevin Lundberg. Current law mandates that clerks of court post the process for notice of a divorce proceeding on a bulletin board in their office when one party cannot be reached. This bill adds the option that clerks can post the process on a bulletin board or the website of the district court in which the case was filed.
  • HB 16-1259 – Concerning Local District Junior Colleges, and, in Connection Therewith, Changing the Term Local District Junior College to Local District College, by Reps. Diane Mitsch Bush & Jim Wilson and Sens. John Cooke & Kerry Donovan. The bill changes all statutory references to “local junior college” or “junior college” to “local district college” and changes requirements regarding number of board members, actions taken without regular meetings, and annexation.
  • HB 16-1270 – Concerning the Limitation of Laws Governing Security Interests to an Owner’s Interest in a Business Entity, by Rep. Pete Lee and Sens. Mark Scheffel & Rollie Heath. The bill allows small businesses to control their ownership under the Colorado Corporation and Associations Act and the Uniform Commercial Code.
  • HB 16-1271 – Concerning the Ability of a Limited Winery that has a Winery Direct Shipper’s Permit to Deliver Vinous Liquors of its Own Manufacture Directly to a Personal Consumer Without the Use of a Common Carrier, by Reps. Jonathan Singer & Dan Nordberg and Sens. Cheri Jahn & Kevin Lundberg. Under current law, a limited winery licensee with a winery direct shipper’s permit may only use a common carrier to deliver the wine it manufactures to personal consumers within Colorado. This bill allows a limited winery licensee to deliver the wine it manufactures directly to personal consumers without the use of a common carrier, as long as the licensee also has a winery direct shipper’s permit and follows the requirements of the permit.
  • HB 16-1306 – Concerning Revision of the State Statutes Governing Mortgage Loan Originators to Conform More Closely to Applicable Federal Law, and, in Connection Therewith, Amending, Relocating, and Repealing Provisions in Accordance with the Federal “Secure and Fair Enforcement for Mortgage Licensing Act Of 2008,” by Rep. Angela Williams and Sen. Chris Holbert. The bill  amends, relocates, and repeals provisions of Colorado’s mortgage loan originator licensing statutes that conflict with or have been rendered unnecessary by recent changes to federal law, or no longer reflect current national industry standards.
  • HB 16-1316 – Concerning Procedures for Changing Venue for Proceedings Relating to a Child Placed in the Legal Custody of a County Department of Social or Human Services, by Rep. Paul Rosenthal and Sen. John Cooke. The bill amends the Colorado Children’s Code to state that a child who is placed in the legal custody of a county department shall be deemed, for the entire period of the placement, to reside in the county in which the child’s legal parent or guardian resides or is located. This applies even if the child physically resides in an out-of-home placement located in another county.
  • HB 16-1327 – Concerning the Colorado Dental Board’s Authority to Promulgate Rules Implementing Financial Responsibility Requirements for Dental Care Providers, by Rep. Joann Ginal and Sen. Kevin Grantham. The bill allows the State Dental Board to establish lesser financial responsibility requirements for professional liability insurance for dental hygienists that meet certain criteria.

Friday, April 22, 2016

  • HB 16-1070 – Concerning a Signature Verification Requirement for Municipal Mail Ballot Elections, and, in Connection Therewith, Making an Appropriation, by Rep. Patrick Neville and Sen. Tim Neville. The bill requires an election judge to compare the signature on each ballot return envelope with the signature of the eligible elector stored in the statewide voter registration system for every municipal mail ballot election.
  • HB 16-1155 – Concerning Authorization for a County to Designate a Four-Lane Controlled-Access Highway that is Located in the County as a Primary Road of the County Highway System, and, in Connection Therewith, Specifying the Jurisdiction, Control, and Duties of the County and of a Municipality Through which the Highway Passes with Respect to Such a Highway, by Reps. Lori Saine & Diane Mitsch Bush and Sen. Jerry Sonnenberg. The bill allows a county with a population of 250,000 or more to designate a four-lane, controlled-access county highway in an unincorporated county area that intersects with an interstate highway or a U.S. numbered highway as a primary road of the county if the construction begins in 2016.
  • HB 16-1323 – Concerning Changing the Name of the Division of Labor to the Division of Labor and Statistics, by Rep. Tracy Kraft-Tharp and Sen. John Cooke. The bill changes the name of the Division of Labor and Employment within the Colorado Department of Labor and Employment (CDLE) to the Division of Labor Standards and Statistics.
  • HB 16-1350 – Concerning the Department of Higher Education’s Authority to Make Transfers Relating to a Governing Board’s Fee-For-Service Contracts for Specialty Education, by Rep. Dave Young and Sen. Kevin Grantham. Under current law, the Department of Higher Education may transfer up to ten percent of the annual total governing board appropriation for an institution of higher education between that governing board’s appropriation for college opportunity fund (COF) stipends, and that governing board’s fee-for-service (FFS) contracts for higher education services and programs. The bill expands the department’s authority to transfer between the COF and FFS appropriations for specialty education programs.
  • HB 16-1352 – Concerning the Appropriation of Moneys from the State Museum Cash Fund for the Benefit of Facilities Owned and Operated by the State Historical Society, and, in Connection Therewith, Making an Appropriation, by Rep. Millie Hamner and Sen. Kevin Grantham. The bill allows moneys in the fund to also be appropriated for exhibit planning, development, and build-out at other State Historical Society facilities, and, for FY 2016-17, appropriates $2 million from the fund for those purposes. The State Historical Society has four years to spend the appropriation.

For a complete list of Governor Hickenlooper’s 2016 legislative decisions, click here.

SB 16-134: Allowing Qualified Military Veterans Access to Professional Licenses

On February 18, 2016, Sens. Rollie Heath & Leroy Garcia and Reps. Jessie Danielson & Daniel Kagan introduced SB 16-134Concerning Professional Licensing for Military Veterans in Certain Professions. The bill was assigned to the Senate Business, Labor, & Technology Committee, where it was amended. The bill passed through the Senate with amendments on Second Reading, and was introduced into the House Business Affairs & Labor Committee. The bill was unamended in the House committee and referred to the House Committee of the Whole for Second Reading.

First, this bill requires the Department of Revenue to consider the training, education, or experience obtained by an applicant as a member of the U.S. armed forces, reserves, or National Guard, and the Department of Revenue may credit the training, education, or experience toward the qualifications necessary to receive a license, certification, or registration.

Second, this bill requires the Division of Veteran Affairs within the Department of Military and Veterans Affairs to make reasonable efforts to notify discharged members of the armed services who are located in – or who intend to relocate to – Colorado of the requirements enacted by this bill and enforced by the Department of Revenue, as well as the requirements in C.R.S. § 24-34-102(8) and (8.5), enforced by the Division of Professions and Occupations of the Department of Regulatory Agencies.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

HB 16-1301: Providing Tax Credit to Colorado Businesses that Offer High-Quality Apprenticeships for Top Jobs

On February 26, 2016, Rep. Alec Garnett and Sen. Mark Scheffel introduced HB 16-1301Concerning an Income Tax Credit for Colorado Businesses that Offer High-quality Apprenticeships for Top Jobs. The bill was assigned to the House Finance Committee, where it was amended and referred to Appropriations. The bill passed out of the Appropriations Committee with amendments and was again amended on Second Reading in the House.

This bill provides an income tax credit to qualified Colorado businesses that meet certain criteria and retain pre-apprentices or apprentices. The tax credit is administered by the Colorado Department of Labor and Employment (referred to herein as “Department”). The intended purpose of the tax credit is to offset a small portion of the cost to the business to create experiential learning opportunities for the state’s youth.

On or before August 15, 2016, and on or before July 1, 2017-2019, the Work Force Development Council shall publish on its website, and send to the Department, a list of top jobs with the greatest regional and state demand.

To be eligible for the tax credit, a taxpayer must be a (1) business in the state that offers top jobs, and a business that: (2) offers a pre-apprenticeship or apprenticeship program; (3) is aligned with a postsecondary education or employment opportunity; (4) employs a sufficient number of program case managers; (5) provides students with training or course work that is designed to prepare the students for the pre-apprenticeship or apprenticeship; (6) implements adequate safety and supervisory safeguards for the participating students; and (7) retains at least one pre-apprentice or apprentice.

To be eligible for the tax credit, a construction industry taxpayer must be a (1) construction industry business in the state that offers top jobs, and the construction business must have at least one of the following employees during the year for which the tax credit is sought: (2-A) an employee who graduated from a construction industry pre-apprenticeship program and who has been accepted into a apprenticeship program; or (2-B) an employee who is a registered apprentice enrolled in a apprenticeship program.

The Department shall promulgate rules for the issuance of the credit certificates. The Department shall review each tax credit application. If the taxpayer receives conditional approval, the taxpayer shall submit to the Department a request for the issuance of a credit certificate. If the Department determines the taxpayer is qualified, the Department, in its discretion, may issue a tax credit certificate for each pre-apprentice (not to exceed $2,500 per pre-apprentice) or apprentice (not to exceed $5,000 per apprentice) retained, totally up to one million dollars per income tax year. The credit certificate must be submitted by the qualified taxpayer to the Department of Revenue. The Department shall disclose in an annual report to the General Assembly and Department of Revenue the certificates issued in the previous year.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

HB 16-1302: Aligning Colorado Work Force Investment Act with Federal Workforce Innovation and Opportunity Act

On February 26, 2016, Reps. Crisanta Duran & Brian DelGrosso and Sen. Linda Newell introduced HB 16-1302Concerning the Alignment of the Colorado Statutes with the Federal “Workforce Innovation and Opportunity Act” through the “Colorado Career Advancement Act.” The bill was introduced in the House Business Affairs and Labor Committee, where it was amended and referred to the House Committee of the Whole. The bill passed Second Reading in the House, amended, and passed Third Reading unamended. The bill was introduced in the Senate and assigned to the Business, Labor, & Technology Committee.

The bill changes the title of the “Colorado Work Force Investment Act” to the “Colorado Workforce Innovation and Opportunity Act” and aligns the current state statute with the federal “Workforce Innovation and Opportunity Act” (stated herein as “federal act”). Passage of the federal act in July 2014 created inconsistencies between Colorado statutes and the federal law with respect to workforce development activity, and this bill updates the language of the previously named “Colorado Work Force Investment Act” to comport with federal law.

First, this bill adds a number of definitions for programs, boards, individuals and geographical regions that are used throughout the bill (and referenced herein).

Second, this bill clarifies the roles that specific entities within Colorado play in work force development programs.

Regarding the work force development program (newly defined), counties are now responsible for determining any expenditure of TANF funds for the cash contributions to infrastructure of the one-stop delivery system or delivery contracts. Beginning July 1, 2017, the one-stop operator (newly defined) must be selected in accordance with the federal act and local policy in the work force development area (newly defined), and if no qualified one-stop operator responds to the procurement process, the local elected officials (newly defined) of that area may designate a one-stop operator.

Local elected officials of a local work force development program area shall appoint a work force board (newly defined) to oversee the one-stop operator, one-stop career center, and local workforce development programs.

A work force development board (newly defined) may designate standing committees that include work force development board members, experienced members of the public, and other listed individuals. The standing committees may be formed to assist with issues related to compliance with federal law dealing with individuals with disabilities, or for any purpose the boards “deem necessary.”

In accordance with federal law, every two years the state work force development council, in consultation with local elected officials, shall conduct a process to identify planning regions (newly defined). The state council shall encourage development programs and areas to enroll individuals in educational programs related to industries that are in demand in that development area. The state council shall work with local communities and their representatives to market and outreach to the public about the opportunities available in the development areas.

Third, the bill removes a number of requirements that existed under state law that no longer apply to due changes in federal law, and instead, the bill requires compliance with federal law. The material state law requirements removed include: (1) the details of the local plans (newly defined); (2) the details of the state plan (newly defined); and (3) establishment of youth council as a subgroup within the work force boards and rural consortium development boards (newly defined).

Fourth, the bill reduces from five years to four years the plan of administering the work force development program with respect to the submission by: (1) each sub-area board (newly defined) of a local plan for its work force development sub-area (newly defined), to be approved by the rural consortium development board; (2) each local work force development area of a local plan to be approved by the governor; and (3) the governor of the state plan to the federal government.

Fifth, the bill allows any county, municipality, city and county, or combination thereof, on an annual basis, to petition the governor to form a new work force development area, and, subject to the governor’s approval, any combination of state localities may operate a development area as a single unit.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

SB 16-077: Utilizing a Collaborative Multi-Agency Approach to Increase Employment Opportunities for Disabled Individuals

On January 19, 2016, Sen. John Kefalas and Reps. Joann Ginal & Dianne Primavera introduced SB 16-077Concerning a Collaborative Multi-Agency Approach to Increasing Competitive Integrated Employment Opportunities for Persons with Disabilities, and, in Connection Therewith, Developing and Implementing an Employment First Policy. The bill was introduced in the Senate Finance Committee, where it was amended and referred to Appropriations.

If enacted, this bill would require the heads of the Department of Health Care Policy and Financing (“HCPF”), the Department of Labor and Employment (“CDLE”), the Department of Education (“CDE”), and the Department of Higher Education (“CDHE”), (referred to in the bill as “Agency Partners”), to develop an employment first policy. This policy would increase competitive integrated employment, as defined in the bill, for people with disabilities.

The bill would require Agency Partners to consult with the Employment First Advisory Board (“Advisory Board”) as part of developing and implementing the employment first policy. At the very least, the employment first policy must do the following:

  • Ensure that Competitive Integrated Employment (“CPI”) is the primary objective for all working-age persons regardless of their disability;
  • Remove any barriers to CPI for persons with disabilities;
  • Rearrange existing resources, if possible, to increase provider capacity through funding incentives;
  • Include provisions relating to post-secondary education planning, career planning, transition planning, employment services, and closing gaps in service;
  • Include provisions for data collection and sharing by Agency Partners to employment and post-secondary education for persons with disabilities, consistent with state and federal data privacy laws;
  • Require professionals, who will provide employment services, to complete a nationally-certified program before being allowed to provide employment services;
  • Establish the employment first policy as part of the State’s plan to address federal case law relating to providing disability services in an integrated setting; and
  • Include a plan for a statewide outreach and training program.

Additionally, each agency is required to implement the program pursuant to its statutory authority if changes relate to Medicaid waivers. Furthermore, the bill will require the Agency Partner’s policy boards to adopt any rules necessary to implement the program. In addition to any other duties under the plan, the HCPF shall:

  • Develop a plan to expand CPI for persons with intellectual and developmental disabilities that includes a gradual shift in funding from noncompetitive employment to CPI;
  • Limit pre-vocational services for persons receiving home and community based services to a maximum of two (2) years, with the possibility of an extension for up to three (3) years;
  • Provide persons with intellectual and developmental disabilities who work in segregated employment (or employment paying below minimum wage) with services related to exploring CPI prior to allowing the individual to remain in segregated or low-wage employment;
  • Establish baseline data for CPI and set goals for annual increases in the number of persons in home or community based services who obtain CPI;
  • Develop a plan and implementation timeline to expand the Medicaid buy-in program and develop a plan to raise asset limits for Medicaid eligibility categories that do not have federal limits;
  • Dedicate a full-time staff member to oversee and coordinate employment support through Medicaid waiver programs;
  • Maintain Colorado’s membership in the National Employment Leadership Network for States;
  • Actively participate in the United States Department of Labor’s Employment First State Leadership Mentoring Program (“Federal Mentoring Program”); and
  • Prepare annual reports concerning the employment first policy and its implementation by Agency Partners and present the report to the general assembly for HCPF.

Lastly, in addition to any other duties under the plan, the proposed bill would require the CDLE to:

  • Establish Colorado’s membership in the Federal Mentoring Program;
  • Promote partnerships with employers to overcome hurdles to employment for persons with disabilities;
  • Create a reimbursement code discovery process for persons with significant disabilities;
  • Require workforce centers to promote nondiscrimination and equal opportunities in employment for persons with disabilities through the use of federal reference guides and checklists; and
  • Provide information to HCPF to prepare the annual report on the employment first policy and present the report to the general assembly’s committee of reference for the CDLE.

The bill creates the advisory board in the CDLE, which encompass the State’s advisory group created for purposes of the Federal Mentoring Plan, and will include that group’s membership and duties, along with additional advisory board members and duties. The bill includes the structure of the advisory board, including the advisory board’s membership and appointing authorities. In addition, the bill requires a sunset review of the advisory board by the department of regulatory affairs before the advisory board’s repeal date in 2026.

The bill also encourages the CDE, in conjunction with the Agency Partners, to facilitate, support, and develop programs for students with disabilities relating to school-to-work transitions, early transition planning, and postsecondary education options and career paths. Furthermore, the bill requires the CDE to actively participate in the Federal Mentoring Program to coordinate employment first practices that affect public schools. Finally, the bill requires the CDE to provide information to HCPF to prepare the annual report on the employment first policy and present the report to the general assembly’s committee of reference for the CDE.

In addition to any other duties under the plan, the bill requires the CDHE to collaborate with the CDE concerning policies and programs that support early transition planning, including postsecondary education, the use of assistive technology, and the retention and graduation of students with disabilities attending higher education institutions. The bill also requires the CDHE to actively participate in the Federal Mentoring Program and to coordinate employment first practices in the higher education setting. The CDHE shall provide information to HCPF to prepare the annual report on the employment first policy and present the report to the general assembly’s committee of reference for the CDHE.

The bill would take effect July 1, 2016.

Mark Proust is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

Colorado Court of Appeals: Career Service Board’s Interpretation of Sheriff Department Rule Reasonable

The Colorado Court of Appeals issued its opinion in Khelik v. City & County of Denver on Thursday, April 7, 2016.

C.R.C.P. 106—Reasonable Interpretation of Rules—City and County of Denver Career Service Board.

Plaintiff Khelik appealed from the district court’s judgment affirming an order of the City and County of Denver’s Career Service Board (Board) relating to disciplinary proceedings against him by the Denver Sheriff Department (DSD). The sole issue on appeal was whether the Board abused its discretion by misinterpreting a DSD disciplinary rule and concluding that a charge of conduct unbecoming does not require the DSD to prove actual harm to the City or the DSD. Khelik was a sergeant in the DSD. He was given a disciplinary notice suspending him without pay for inappropriate interactions with a female officer under his command and retaliating against her for stating her intention to file a sexual harassment complaint. Khelik appealed his suspension to a hearing officer in the Career Service Authority. The hearing officer concluded that because the DSD had not made a showing of actual harm, Khelik had not violated DSD Rule 300.11.16 (the retaliation claim was also denied and that was not appealed). The DSD petitioned for review with the Board, and the Board vacated the hearing officer’s determination, concluding there was no requirement of a showing of actual harm to the City or the DSD to find a violation of the rule concerning conduct unbecoming. The district court affirmed. Khelik appealed under C.R.C.P. 106.

The Colorado Court of Appeals concluded that the Board did not abuse its discretion. In interpreting DSD Rule 300.11.16, the Board’s reasoning was consistent with principles of statutory interpretation and reflects the plain language of the rule, the drafters’ intent, and the policy considerations behind the rule.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

HB 16-1156: Prohibiting Actions Against Employees for Sharing Wage Information

On January 28, 2016, Reps. Jessie Danielson & Joseph Salazar and Sens. Kerry Donovan & Rollie Heath introduced HB 16-1156 – Concerning the Prohibition of an Action Against an Employee for Sharing Wage Information. The bill was introduced into the House Business Affairs and Labor Committee, where it passed unamended. It passed Second and Third Reading in the House unamended and was introduced in the Senate in the State, Veterans, & Military Affairs Committee. It passed through that committee unamended and was referred to the Senate Committee of the Whole for Second Reading.

Current law states that it is a discriminatory and unfair labor practice for an employer to discharge, discipline, discriminate against, coerce, intimidate, threaten, or interfere with any employee or other person because the employee inquired about, disclosed, compared, or otherwise discussed the employee’s wages, unless otherwise permitted by federal law. Certain classes of employers who are exempt from the National Labor Relations Act are also exempt from the aforementioned labor practice provision. This bill abolishes the reference to the exemption and extends the current law to those classes of employers previously exempt, thereby providing discrimination protections to all employees.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

HB 16-1167: Creating the “Colorado Family First Employer Act” to Recognize Family-Friendly Employers

On January 29, 2016, Reps. Faith Winter & Brittany Pettersen and Sens. Nancy Todd & Kerry Donovan introduced HB 16-1167Concerning the Creation of the Colorado Family First Employer Act, and, in Connection Therewith, Establishing a Program that Recognizes Colorado Employers that Meet Certain Family-Friendly Requirements. It was assigned to the House Business Affairs and Labor Committee.

This bill proposes to create the Colorado Family First Employer Act under Article 13.7. The Colorado family first employer program, which would be created by the bill, would require the department of labor and employment (department) to establish a program that would designate Colorado employers who meet certain family-friendly criteria as Colorado family first employers. C.R.S. § 8-13.7-104 sets forth the criteria that an employer must demonstrate in order to be considered for an award by the Governor’s Office.

The bill proposes, among other things, to decrease the wage gap between men and women, specifically as it relates to African-American, Latina, Asian-American, and Native-American women. The bill also proposes to provide incentives to workers who have families needing child-care services or paid-leave for family responsibilities.

Additionally, the Office of the Governor would be authorized by the bill to recognize the employers who have been certified by the department with an award. Furthermore, the bill would allow designated employers to use a logo, created by the Office of the Governor, for promotional purposes.

Mark Proust is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.