Legislative Priorities

As introduced, HB23-1118 would have imposed the following requirements on every food service establishment and food-and-beverage manufacturer in the state, as well as every retailer with over 250 employees:

Anticipated Work Plan:

• Requires employers to provide all employees with an “Anticipated Work Plan,” which is a written statement describing when a covered employee can expect to work that is established by a covered employer and provided to a covered employee.
• Employers shall acquire from all current and new employees a written statement of the employees desired number of weekly work hours and the days and times the employee is available to work at the time of hire or as soon as possible thereafter. The employee is allowed to modify this statement at any time during employment.
• The employer shall revise the anticipated work plan when there is a significant change (which is a change of 15% of the average work hours in the work plan).
• The employer may grant or deny a covered employee’s request concerning an anticipated work plan for any reason that is not unlawful.

The plan must include:

• The average number of work hours the employee can expect to work each week over a typical 90-day period;
• The minimum and maximum number of work hours the employee can expect to work each week;
• The minimum and maximum length of shifts that the covered employee can expect to work;
• Whether the employee can expect to work any on-call shifts;
• A subset of days and a subset of times or shifts the employee can typically expect to work;
• A subset of days of the week and times of shifts the employee will not be scheduled to work, and the location or locations of most or all scheduled shifts;
• The total number of hours in the plan cannot change more than 15% without employee written consent.

Definitions

• “Chain” is defined as two or more food or beverage establishments or retail establishments that do business under the same trade name and are characterized by standardized options for décor, marketing, packaging, products, and services, regardless of the type of ownership of each establishment.
• “Covered employee” means an employee of a covered employer who is not exempt from overtime and minimum pay standards.
• “Covered employer” means any food or beverage establishment, food and beverage manufacturing establishment, or a retail establishment that employs two hundred fifty or more employees worldwide.
• Covered employer would also include a business that provides labor that is “integral to the business of an establishment” listed above. This language is broad enough to be interpreted to include any business that interacts with a restaurant.

Predictability Pay & Posting Requirements

• Minimum 14-day schedule posting before the first day of any new work schedule (includes each covered employee’s shifts at that workplace regardless of whether the employees is scheduled to work or be on call)
  • Note: For an employee who is a victim of or has a family member who is a victim of domestic abuse, sexual assault, or harassment, they may request that the employer submit their work schedule only to them by a method of delivery determined by the employee to ensure privacy/safety. An oral request may be made by the employee, but the employer may ask for the request in writing.
• One (1) hour of predictability pay at the covered employee’s regular rate of pay when the covered employer adds time to a shift or changes the location
• Two (2) hours of predictability pay when the employer subtracts time from a shift or changes the date or time of the shift
• Employers do not need to pay predictability pay if the employee requests a shift change by written communication and they are using paid leave, or if the change is the result of shift trade or coverage arrangement upon which two or more covered employees have mutually agreed to in writing, or the hours change due to the employee’s termination.

Schedule Changes

• Any changes to a posted work schedule by the employer need to be posted in writing for the employee within 24 hours.
• An employee may consent to changes in schedule, but they are not required to.

Right to Rest

• A covered employee can decline to work any shifts or work hours that are scheduled less than 12 hours after the end of the previous shift, during the twelve hours following the end of a shift that spanned two days.
• An employee can consent to working these shifts, but must provide written notification and has the ability to revoke that consent up to 48 hours before the shift begins.
• If an employee works a shift within 12 hours of the end of the previous shift, they must be paid “Rest Shortfall Pay” in the amount of 1.5 times their regular rate of pay (in addition to the employer getting written consent).

Hiring PT Workers to Fill Hours (“Retention Pay”)

• Before an employer can hire a new “Covered Employee” they have to make every effort to schedule existing employees for their desired number of weekly work hours up to forty hours per week or twelve in a day, and;
  • Offer and distribute additional work hours to covered employees employed at other locations if:
    • no existing covered employee at the location where a proposed new employee is to work accepts the additional work hours, or
    • Existing employees at the location where a proposed new employee is to work who accept the additional work hours lack and cannot obtain with reasonable training the qualification necessary to perform the work.
• If an employer fails to offer an existing covered employee an opportunity to work the covered employee’s desired additional number of weekly work hours before hiring a new covered employee, the covered employer shall provide the existing covered employee retention pay for a six month period beginning on the new covered employee’s date of hire at the existing covered employee’s regular rate of pay for the hours worked by the newly hired covered employee that occur within the existing covered employee’s availability.

Minimum Weekly Pay

• An employer shall pay each employee minimum weekly pay in an amount that corresponds to fifteen percent of the average weekly hours indicated in the employee’s anticipated work plan and the employee’s regular rate of pay, or the minimum wage, whichever is higher.

Right of Employees to Request Work Schedule Modifications

• At the time of hire and at any time during employment, an employee may request certain schedule modifications or flexible working arrangements.
• Under these circumstances, the employer shall grant any scheduling modification request unless the employer has a bona fide business reason – in that case, the employer shall consider alternatives that might meet the employee’s needs. The reason for denial must be provided in writing.
• All other requests for schedule modifications – are allowed to be denied by the employer if the reason is not unlawful. In this event the employer shall consider alternatives that work for the employee and provide the reason for denial in writing.

Retaliation

• The bill states that if the employer takes any adverse action against an employee within 90 days of exercising their rights under this legislation, there is a rebuttable presumption that the employer took that action because the employee exercised their rights under this bill.

Retaliation for Seasonal Employment

• If a seasonal employee complains and their employment ends before 90 days after the employee exercises that right then the employer is assumed to have retaliated if they fail to rehire that seasonal former employee for work in the same position.

Posting Requirements & Notices

• An employer shall post and keep posted in conspicuous and accessible places on the premises of the employer, a notice that outlines all rights and privileges under this article
• Rules will be promulgated which will require that written notices be give to each employee

Record Retention

• Employers are required to keep all records needed in order to provide evidence of compliance with the requirements in this bill (which includes all Anticipated Work Plans, payroll records, written communications with employees about schedule change consent, and more) for (3) three years or for the duration of a claim, civil action, or investigation pending pursuant to this legislation.
• Any covered employee can request the work schedules of all covered employees at the covered employee’s work location in writing for any week during the preceding (2) two years, including the originally posted work schedule and any modified versions of them.

Whistleblowers

• The bill provides specific timelines for CDLE to take action against an employer if a whistleblower provides information that they believe the employer to be in violation of this statute. If CDLE does not take action against the employer, they are allowed to have the whistleblower to “proceed on behalf of the state”. If money were to be awarded, 75% of the money would go to the state and 25% would go to the whistleblower, with the court being able to award reasonable attorney’s fees as well.

Civil Actions/Available Relief

• For each violation, fines range from $200 total, to $250/day to $10,000.

Collective Bargaining Agreements

• All of the provisions in this bill may be waived in a bona fide collective bargaining agreement if the waiver is explicitly set forth in the agreement in clear and unmistakable terms.

CRA Position

The CRA opposed this bill.

Sponsors

Representatives Sirota (D) and Gonzales-Gutierrez (D) and Senators Gonzales (D) and Winter (D)

Status

After seven hours of testimony during the February 16 House Business Affairs & Labor Committee hearing, the final committee vote on HB23-1118 was laid over for action only to the March 2 committee hearing.

On March 2, the bill failed to move out of committee on a vote of two to eight, and was postponed indefinitely. The votes of the committee members were as follows, either supporting (yes) or opposing (no):

Representative Judy Amabile, Chair (D) – No
Representative Naquetta Ricks, Vice Chair (D) – No
Representative Regina English (D) – Excused
Representative William Lindstedt (D) – No
Representative Sheila Lieder (D) – Yes
Representative Javier Mabrey (D) – Yes
Representative Lindsey Daugherty (D) – No
Representative Rick Taggart (R) – No
Representative Ryan Armagost (R) – No
Representative Lisa Frizell (R) – No
Representative Ron Weinberg (R) – No

While the defeat of this bill is a huge testament to the restaurant industry’s ability to mobilize around this issue, it is important to note that the bill’s sponsors have stated their intention to bring back this legislation next year, so it is important to remain engaged.

SB23-171 would have required entertainment facilities with a capacity of 7,000 people or more to designate and enforce at least four percent of its seating as substance-free (where the use of alcohol, nicotine, cannabis, and all other intoxicating substances is banned). It would’ve further required that the areas designated substance free cannot be higher or further away from the entertainment area than the average seat in the arena. Failure to enforce or comply with the requirements would have been deemed “good cause” for refusal/denial of a liquor license.

CRA Position

The CRA monitored this legislation.

Sponsors

Senator Priola and Representative DeGruy-Kennedy

Status

This bill was defeated 2-5 in the Senate Finance Committee during the March 28 hearing.

The bill expands the definition of “harass” or “harassment” in current law as it pertains to workplace matters and removes the requirement that the conduct need to be “severe or pervasive” to constitute discriminatory or unfair employment practices. It also significantly limits the circumstances where an employer can assert an affirmative defense to an employee’s claim of harassment or enforce a non-disclosure agreement.

The bill was amended several times in the process after negotiations with proponents and opponents. Many of the changes made the bill more palatable for employers. The amendments did the following:

• Clarified the definition of “harass” and “harassment”
• Specified that a single instance cannot qualify as harassment
• Provided employers with an opportunity to assert an affirmative defense, as long as records of harassment complaints were properly documented and maintained

CRA Position

The CRA opposed this legislation.

Sponsors

Senators Winter and Gonzales, Representatives Weissman and Bacon

Status

The bill passed through both chambers and has been sent to Governor Polis for his signature or veto.

This legislation would have prohibited an employer engaged in a business from taking adverse action against an employee who accepts a cash gratuity offered by a patron of the business.

CRA Position

The CRA worked with the bill sponsor to add an amendment allowing an employer to require an employee to participate in an established tip-sharing agreement. The CRA successfully added an amendment to the bill, and then maintained a monitor position.

Sponsors

Representative Valdez (D)

Status

The bill passed through both chambers but was vetoed by Governor Polis.

This bill makes changes to the “Arts Permit,” expanding it to be issuable to retail businesses. The permit allows a retail business to serve complimentary alcohol beverages to customers up to 24 days in a year for no more than 4 hours in a 24-hour period. There are limits on the amount of alcohol that can be served to a customer and the types of businesses that can apply for this permit. The hours of service match other on-premises licenses, and age requirements for servers match Hotel and Restaurant licenses.

Sponsors

Representatives Daugherty (D) and Taggart (R) and Senator Zenzinger

Status

The bill passed through both chambers and has been sent to Governor Polis for his signature or veto.

This legislation sets new water and energy efficiency standards for certain appliances, including commercial hot-food holding cabinets, commercial ovens, water heaters, and more. This new standard will be applied to the sale of NEW equipment. Also, it will put the standards on a five-year automatic update and require periodic unannounced inspections of retailers selling new equipment to ensure compliance.

CRA Position

After speaking with the bill sponsors and receiving clarification that new energy standards would NOT require or seek to ban gas appliances, the CRA maintained a monitor position.

Sponsors

Representative Kipp (D) and Wilford (D) and Senator Cutter (D)

Status

The bill passed through both chambers and has been sent to Governor Polis for his signature or veto.

This bill as introduced sought to expand the civil legal remedies available to a person with a disability under current Colorado law including:

• That at a person with a disability is prohibited from being subject to discrimination by, excluding from participating in, or being denied the benefits of services, programs, or activities of a place of public accommodation.
• Allows an aggrieved individual to recover damages for emotional distress and requires awarding of attorney’s fees for a prevailing plaintiff
• That a person with a disability is entitled to both a court order requiring compliance and either monetary damages or a statutory penalty.

After considerable opposition to the introduced version of this bill, the sponsor amended the bill in the House of Representatives to remove the portions allowing for the awarding of pain and suffering and the requirement to award attorney’s fees to a prevailing plaintiff and simply adopted current federal protections into Colorado law. While this would allow a plaintiff to file in state court instead of federal court, it significantly reduced the potential negative impact of this legislation on Colorado’s businesses.

CRA Position

We monitored this legislation.

Sponsors

Representative Ortiz (D) and Senator Rodriguez (D)

Status

The bill passed through both chambers and has been sent to the Governor for his signature or veto.

This legislation requires employers to provide information to employees about the federal and state income and childcare tax credits. Originally, the bill required the information be provided in whatever form the employer uses to issue annual statements to the employee; it required the notification be in English and any other language that the employer typically uses to communicate with the employee; and the notice had to be provided no earlier than seven days before and no later than seven days after the date the employer issues the annual pay statements.

The bill was amended in committee to allow an employer to provide the notification electronically at any point throughout the year.

Sponsors

Representative Young (D) and Senator Exum (D)

Status

This bill has been signed into law by Governor Polis.

This bill expands the allowable uses of state-mandated sick leave to include:

• Time needed to grieve, attend funeral/memorial services, or deal with financial and legal matters that arise after the death of a family member.
• Time needed to care for a family member whose school or place of child-care has been closed due to inclement weather, loss of power, loss of heating, loss of water, or another unexpected event that results in closure.
• Time needed to evacuate the employee’s place of residence due to inclement weather, loss of power, loss of heating, loss of water, or other unexpected event that results in the need to evacuate the employee’s residence.

CRA Position

The CRA monitored this legislation.

Sponsors

Senator Winter (D) and Representatives Wilford (D) and Joseph (D)

Status

The bill passed through both chambers and has been sent to Governor Polis for his signature or veto.

This legislation requires the Colorado Department of Labor and Employment to administer a process to accept and mediate complaints, to provide legal resources concerning alleged wage inequity, and to promulgate rules as necessary for this purpose. The bill also requires employers to provide their employees specific information about job opportunity or promotional opportunities. It would also change the statute of limitations on violations of this section from three to six years.

This bill was amended to make technical changes to the bill, extended a timeline required to give certain information to employees about a new hire from five business days to 30 calendar days, and exempt state government from the certain requirements of the bill. The bill was amended again later in the process to change the requirement that jobs be posted for five days prior to hiring an employee. This amendment allows for on-the-spot hiring if the employer has posted they are hiring employees or if they post for the position immediately after making the hire.

CRA Position

The CRA took an amend position on this legislation. Our main concern was that the original legislation would have prohibited restaurants from hiring someone who walks in off the street wanting to work and would require they delay the individual’s start. While the bill sponsors did not end up adopting ideal language around spot hiring, the final amendment that was added makes it workable for restaurants and other retail establishments.

Sponsors

Senators Danielson (D) and Buckner (D), and Representatives Gonzales-Gutierrez (D) and Bacon (D)

Status

The bill passed through both chambers and has been sent to Governor Polis for his signature or veto.

SB23-143 makes changes to the administration of the retail delivery fee that was put into law in 2021 as part of a larger transportation funding bill. The bill clarifies that a business can decide to not charge the customer for the fee and instead cover the cost of the fee themselves, and sets certain requirements around disclosures if a business does decide to do this. The bill also excludes retailers with less than $500,000 in gross retail sales from having to collect and remit the fee and provides retroactive relief to businesses that meet the $500,000 threshold.

CRA Position

The CRA tried to work with the sponsors of this legislation to change the exemption to target an amount of delivery sales rather than total sales, because only a very small number of restaurants would fit the exemption in the bill. After several conversations with the sponsors and the Colorado Department of Revenue, it was determined that expanding the exemption would cost the state too much money, and our amendment request was denied.

Sponsors

Senators Fenberg (D) and Van Winkle (R) and Representatives DeGruy Kennedy (D) and Weissman (D)

Status

This bill has been signed into law by Governor Polis.

This bill creates standards for products represented as compostable and would prohibit “producers” from representing a product as compostable and from using certain labeling, images, and phrases unless it meets certain standards and certifications. Under the bill, if a “producer” violates the standard, they would be engaging in unfair or deceptive trade practices.

As introduced, the bill defines “producer” as the business that first offers the product for sale in the State of Colorado, regardless of whether that business is a manufacturer, distributor, or retailer. This legislation uses many of the same definitions as the Extended Producer Responsibility in Recycling (EPR) bill from 2022. In the legislation, restaurants were exempted from the definition of “producer” because the requirements put on a “producer” would have been too cumbersome for restaurants to comply with.

CRA Position

The CRA worked with the sponsor to amend the language to include the same exemptions from the EPR legislation in 2022. After that language was adopted, the CRA moved to a monitor position on this legislation.

Sponsors

Senator Cutter (D) and Representatives Froelich (D) and McCormick (D)

Status

This bill has been signed into law by Governor Polis.

Under current law, liquor licenses in the State of Colorado can apply for and participate in nine festivals a year at locations other than their physical licensed premises. At these festivals, licensees can utilize the same retail privileges they have at their licensed premises. This bill changes the number of festivals in which a liquor licensee can participate 52 each year. It also changes the fee for the permit to $50 per festival from $25 a year, and requires the licensee to file a permit application 30 calendar days before the festival (up from 10 business days).

CRA Position

The CRA monitored this legislation.

Sponsors

Senators Rodriguez (D) and Gardner (D) and Representatives Lynch (R) and McCluskie (D)

Status

This bill has been signed into law by Governor Polis.

This bill would have required transportation network companies (TNCs) and delivery network companies (DNCs) to provide both drivers and consumers with various payment disclosures regarding payments made by restaurants and the TNCs and DNCs to drivers and consumers using the platform. It also created significant restrictions on the ability of the TNCs and DNCs to remove drivers from their platform for violations of service terms or consumer complaints.

The bill received significant opposition from the DNCs and TNCs as the bill moved through the committee process in the Senate. The sponsors offered several amendments aimed at assuaging concerns from the TNCs and DNCs to save the bill, but none of the amendments were able to move opposition.

CRA Position

Because our membership was split on certain provisions of the bill, CRA remained neutral on the bill.

Sponsors

Senator Rodriguez and Representatives Bacon and Vigil

Status

The bill was postponed indefinitely by the Senate Finance Committee on May 2, but we believe it is likely that a similar bill will be introduced in the 2024 session.

This bill prohibits employers from inquiring about a prospective employee’s age, date of birth, and dates of attendance at or date of graduation from an educational institution on an initial employment application. An employer may request an individual to verify compliance with age requirements imposed pursuant to or required by:

• A bona fide occupational qualification pertaining to public or occupational safety
• A federal law or regulation
• A state or local law or regulation based on a bona fide occupational qualification.

CRA Position

The CRA monitored this legislation.

Sponsors

Senators Danielson (D) and Jaquez Lewis (D) and Representatives Willford (D) and Young (D)

Status

The bill passed through both chambers and has been sent to the Governor for his signature or veto.

This bill puts a question on the 2023 ballot (Proposition HH) that would make changes to commercial and residential property tax-assessment rates and would make several other tax changes that impact TABOR refunds. The measure has several moving parts, but the following would take place:

• Immediately reduces commercial assessment rates and most residential assessment rates, with continued reductions over the next few years.
• Caps the annual growth in assessed value of property by the rate of inflation.
• Creates a mechanism for local governments that are dependent on property-tax revenue to vote to override the growth caps.
• Creates portability for most senior property-tax exemptions.
• Increases the amount of property value exempt from inclusion in valuation, from the current $15,000 to $50,000.
• Creates a mechanism for the state government to backfill a portion of the property tax revenue that would not be collected, allowing the state to use money that would otherwise be refunded under the Colorado Taxpayer Bill of Rights (TABOR).
• Increases the amount of revenue the state is allowed to retain under TABOR.

CRA Position

The CRA monitored this legislation as it has the potential to provide relief to commercial property taxpayers.

Sponsors

Senators Fenberg (D) and Hansen (D) and Representatives deGruy Kennedy (D) and Weissman

Status

The bill passed through both chambers and was signed into law by Governor Polis.