Holland & Hart Shares With XpertHR Recent Developments Affecting Colorado Employers

Author: Melissa A. Silver, XpertHR Legal Editor

August 7, 2013

Colorado lawmakers are presenting new challenges for HR and employers this year! Judith (Jude) Biggs, partner in the labor and employment practice group of Holland & Hart shared her legal and professional insights with XpertHR into the recent changes in workplace law, and other key developments affecting Colorado employers.

1. What is the biggest challenge facing HR in Colorado today?

   Many companies were forced to cut personnel during the recession and HR professionals were no exception. As a result, Biggs sees a greater number of claims and charges handled by a very lean staff. This poses a significant challenge for HR in Colorado because now there is a shortage of witnesses thereby creating a lack of corporate memory to key events.

2. Have there been any notable new Colorado laws or high court rulings in the last nine months that will have a big impact on the workplace?

   There were several newly enacted Colorado employment laws that will have a significant impact on the workplace.

   First, on April 19, 2013, Governor John Hickenlooper signed the Employment Opportunity Act, which became effective July 1, 2013. With limited exceptions, this law prohibits private employers with four or more employees from conducting credit checks on job applicants and employees.

   Second, the Family Care Act, signed by the Governor on May 3, 2013, requires employers covered under the federal Family and Medical Leave Act to provide eligible employees with leave to care for civil union partners and domestic partners with a serious health condition.

   Third, Colorado joined a growing number of states and enacted a law prohibiting employers from requesting or requiring employees or applicants to provide their user names and passwords and other access information. This law also prohibits employers from requiring employees or job applicants to add anyone as a contact ("friend") or to change their privacy settings. The law does provide some safeguards for employers. For instance, employers are not prohibited from requiring employees to disclose a user name or password in order to obtain access to the employer's internal computer or information systems.

   Fourth, small business owners should be aware that the Job Protection and Civil Rights Enforcement Act of 2013 signed by the Governor on May 16, 2013, expands discrimination lawsuit damages to employers with 14 or fewer employees. These damages include compensatory and punitive damages. Since this law applies to all employers there will likely be an increase in discrimination cases filed. However, there is a cap on damages against such employers. This law applies to claims alleging discriminatory or unfair employment practices that begin on or after January 1, 2015.

   Fifth, the November 2012 legalization of recreational marijuana in Colorado also presents challenges for HR when managing employees with disabilities who use marijuana for medicinal purposes or employees who use marijuana when off duty. "Drug-free workplace, drug testing and other employment policies need to be updated to reflect that marijuana use, though legal for both medical and recreational purposes in Colorado, is still illegal under federal law and therefore, can be prohibited by employers," says Biggs.

   In a favorable development for employers regarding marijuana use, the Colorado Court of Appeals recently ruled that an employer that terminated an employee who tested positive for marijuana following his off-duty, off-premises use of medical marijuana did not violate Colorado's lawful activities statute. Coats v. Dish Network, LLC, 2013 COA 62 (Colorado Ct. App. 2013). Colorado's lawful activities statute, CRS § 24-34-402.5, prohibits employers from discharging an employee for engaging in "any lawful activity off the premises of the employer during nonworking hours." The Court of Appeals ruled that because the use of marijuana remains illegal under federal law, it is not a lawful activity for purposes of the statute. In a spirited dissent, one appellate judge argued that state law, not federal law, should apply, opining that because medicinal marijuana use was legal in Colorado, it should be deemed a lawful activity under the state statute. Under the dissent's position, the employer's termination of an employee for legal marijuana use in Colorado would violate the lawful activities statute. The Colorado Supreme Court is currently considering whether to review this case pursuant to a petition for certiorari filed on July 5, 2013.

3. Are there any bills and/or proposed rules currently pending in Colorado (or in Congress) likely to pass that would have a big effect on HR?

   Since Colorado's legislature adjourned in early May, there are no additional bills pending.

4. Are there any employment and labor enforcement trends to watch in Colorado?

   Administrative trends to watch in Colorado include the implementation of rules legalizing the use and possession of small amounts of marijuana by adults over 21 years old. The Governor's Task Force that was appointed to advise on the creation of these marijuana regulations recommended that the employer-employee relationship remain status quo, with employers entitled to create and enforce workplace policies prohibiting and/or restricting the use of marijuana by employees.

   In addition, the Colorado Civil Rights Division (CCRD), which enforces the state's antidiscrimination laws, may see an increase in the number of discrimination cases filed with the agency once the Job Protection and Civil Rights Enforcement Act of 2013 is in effect.

   Beginning January 1, 2015, the availability of compensatory and punitive damages under this new law may cause more employees to seek redress for discrimination through the CCRD, especially since they can file claims against small employers with fewer than 15 employees who are not subject to Title VII and other federal discrimination laws. More discrimination claims may also be filed with the CCRD because sexual orientation and transgender status is protected under Colorado law - not federal law - and the CCRD is the exclusive outlet to investigate and enforce discrimination claims based on those characteristics.

5. What is the number one mistake employers are making?

   According to Biggs, an employer's lack of documentation of an employee's poor performance and/or misconduct is an especially costly mistake when an employer needs to defend any action it has taken, e.g. discipline or termination, based on these issues.

Holland & Hart is one of XpertHR's premier contributing author firms, having written over 100 state-specific Employment Law Manual sections for XpertHR, covering employment law in Idaho, Montana, Nevada, and Utah.

Ms. Biggs has more than 25 years of employment law practice experience, and manages Holland & Hart's MyEmploymentLawAdvisor employment advice service, helping employers anticipate, avoid, and resolve workplace issues that distract from the larger goals of running a business.