2013 legislative session yields new employment laws

Sholler

Gun control, civil unions, recreational marijuana – oh my! While a plethora of bills passed this legislative session, their palatability likely depends on your political persuasion. Love ’em or hate ’em, bills passed this legislative must be followed, and employers must be attentive to three in particular.

The Family Care Act (House Bill 1222) requires employers covered by the Family Medical Leave Act (those with 50 or more employees meeting certain criteria) to extend medical leave to care for employees’ partners in a civil union or domestic partnership. It is available to employees in a civil union under Colorado law, a domestic partnership recognized by a municipality where they reside (currently only Denver and Boulder) or by an employer-recognized domestic partnership. The law intends to run concurrently with FMLA leave, not to increase the allowable 12 week unpaid leave. But, critics claim employees could take 12 weeks leave under the state law, and another 12 weeks under FMLA because FMLA does not recognize civil unions or domestic partnerships. The law became effective Aug. 7. Employers should update their policies to recognize the expanded leave; train human resources, managers, supervisors and benefits staff; and advise employees of the new law.

Under HB 1046, employers are barred from requesting or requiring applicants or employees to disclose their social media passwords. It also prohibits employers from coercing employees or applicants to change their privacy settings, such as making their Facebook page public, or adding the employer to the account so the employer could view their posts.

Exceptions allow required disclosure of user names and passwords for work accounts to access the organization’s computer system, and for lawful workplace investigations (e.g. violation of securities regulations or misappropriation of trade secrets). The Colorado Department of Labor may impose fines up to $1,000 for a first offense and up to $5,000 for each subsequent offense. The law became effective July 1.

Does your organization employ even one employee? The most significant impact to employers from HB 1136 is the expansion of rights to employees under the Colorado Anti-Discrimination Act, applicable to employers of any size. Federal anti-discrimination laws previously provided greater recourse and money damages than CADA, but only if the employer had 15 (or in some cases 20) employees. Recourse under CADA is now on par with federal law, but it applies to all employees. Colorado recourse even exceeds federal law now, because it provides rights for sexual orientation and “lawful off-duty activity” discrimination, but federal law does not.

Before this expansion, employees could sue under the CADA for reinstatement of their job, back pay (money from the date of discrimination until trial), and interest on back pay. Now, employees may also recover front pay (money from trial into the future), pain and suffering damages if the discrimination was intentional, attorney’s fees and punitive damages to punish the employer. Yet, punitive damages are available only if there is “clear and convincing evidence” the discrimination was made with reckless indifference to the employee, a high threshold. Caps limit the total amount of pain and suffering and punitive damages, based on the number of employees. This law also expanded rights for age discrimination to those older than 70 where previously, CADA only prohibited age discrimination between ages 40 and 70. Jury trials are now available under CADA.

Employers should revise their policies to reflect these changes; provide periodic discrimination, harassment and retaliation training; identify existing problem areas; and evaluate whether to purchase Employment Liability Insurance to cover discrimination claims. Be aware that insurance does not cover punitive damage awards.

The good news: The law is not effective until Jan. 1, 2015, so there is time to prepare.

Prudent employers will seek appropriate advice and timely comply with these expanded laws. Failure to do so could result in significant financial exposure.

Lynne Sholler is an employment law attorney in Durango. Reach her 375-7756. This is not legal advice, nor should it be construed to be legal advice. Please contact an attorney to obtain legal advice about the specifics of your situation.

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