Equal pay shouldn't treat employers like the enemy

Friday, February 22, 2019

Equal pay for equal work isn’t just a laudable goal. It’s basic fairness, so Colorado law can certainly require it of employers.

On the other hand, Senate Bill 85, as originally introduced by Sen. Jessie Danielson, D-Wheat Ridge, and Brittany Pettersen, D-Lakewood, didn’t focus on basic fairness. Instead, it contained rigid rules and “gotcha” litigation traps that doom Colorado employers to failure, then punish them with costly lawsuits for violations that have nothing to do with discrimination.

For example, each of the following would have constituted unlawful discrimination under the introduced bill:

  • •A male hotel clerk in Aspen is paid more than a female hotel clerk in Akron - not because one is male and the other female, but due to differences in the cost-of-living.
  • •A female nurse is paid more to work the graveyard shift than a male nurse who works days. That’s because one is paid more to work undesirable hours.
  • •A company has a hard time recruiting employees to work in remote parts of the state, so they pay a male sales representative more to work in Springfield than a female doing the same job in Greeley. Employers sometimes pay more for hard-to-fill positions.

These are all legitimate reasons for paying different salaries and have nothing to do with whether the employee is male or female.

At the bill’s first hearing in Senate Judiciary Committee, some practical concerns raised by Colorado employers were addressed. For example, amendments to the bill clarified that liquidated damages could not be imposed if an employer acts in good faith. Also, pay differentials based on geography would be allowed. But much work remains.

Senate Bill 85 still allows an employee to bring a lawsuit without ever filing a formal complaint with a neutral party, such as the Department of Labor (which typically handles wage disputes) or the Civil Rights Commission (which hears claims of unlawful discrimination).

An employer’s first notice of an employee’s complaint could be when served with a lawsuit. That's not fair or reasonable. Other bills (HB 1025, limiting job applicant criminal history inquiries) have accomplished their sponsors’ goals without creating new lawsuits.

Forcing both sides to “lawyer up” right out of the gate is unnecessarily adversarial, particularly since it’s common for disgruntled employees to file dubious complaints against former employers. The Colorado Civil Rights Division’s annual report shows that some 95 percent of employment discrimination claims filed with CCRD are found to have “no probable cause.” The administrative procedure provides for a “cooling off” period while a neutral third-party investigates the complaint.

As Senate Bill 85 moves forward, CCJL is counting on sensible legislators of both parties to recognize that Colorado can require basic fairness toward workers without putting employers in a no-win predicament.


BILLS AT A GLANCE (CCJL POSITION)

CCJL positions are primarily determined by potential for expanding liability or whether legislation is likely to increase or decrease frivolous lawsuits. If no position is listed, CCJL is monitoring bill.

HB 1025 - Criminal History of Job Applicants
Sponsors: Rep. Leslie Herod, D-Denver, Rep. Jovan Melton, D-Aurora
Comments: Commendably accomplishes stated policy goal without creating new lawsuits.

HB 1106 - Rental Application Fees
Sponsors: Rep. Brianna Titone, D-Arvada, Rep. Serena Gonzales-Guteirrez, D-Denver; Sen. Brittany Petterson, D-Lakewood.

HB 1170 - Residential Tenants & Landlord Contracts
Sponsors: Rep. Dominique Jackson, D-Aurora; Rep. Mike Weissman, D-Aurora; Sen. Angela Williams, D-Denver; Sen. Jeff Bridges, D-Greenwood Village.
Comments: As introduced, bill creates incentives for unnecessary litigation by allowing tenant to sue for three times actual damages and awards attorney fees and costs only to prevailing tenant, not to prevailing landord.

HB 1183 - Automated Defebrillator Liability
Sponsors: Rep. Dylan Roberts, D-Eagle. Comments: As introduced, bill requires that any "public place" or public school to accept the donation of an automated external defibrillator (AED) but does not extend Colorado's existing Good Samaritan liability protections to those places or persons who may use the AED.

SB 43 - Increase Number of District Court Judges (SUPPORT )
Sponsors: Sen. Pete Lee, D-Colorado Springs; Sen. Bob Gardner, R-Colorado Springs; Rep. Terri Carver, R-Colorado Springs; Rep. Leslie Herod, D-Denver.
Comments: Consistent with CCJL's mission to attract and retain quality judges who can efficiently and capably adjudicate cases.

SB 85 - Pay Disparities (AMEND)
Sponsors: Sen. Brittany Pettersen, D-Lakewood; Sen. Jessie Danielson, D-Wheat Ridge; Rep. Janet Buckner, D-Aurora; Rep. Serena Gonzales-Gutierrez, D-Denver.
Comments: See above.

SB 109 - Increase Limits on Lawsuit Damages (OPPOSE)
Sponsors: Sen. Steve Fenberg, D-Boulder; Rep. Alec Garnett, D-Denver.
Comments: Increasing limits on damages for pain and suffering claims will increase costs to Colorado families and consumers who will see the value their present insurance reduced and be forced to choose between paying more for the same coverage or simply receiving less coverage.

 

Legislative Update

Thursday, February 07, 2019

Nearly one month into the 2019 legislative session, CCJL is keeping a close eye on bills that would create new lawsuits or impose new costs on Colorado businesses and the working families who rely on them.

Here’s a look at emerging bills and issues:

Criminal History of Job Applicants - House Bill 1025 (sponsored by Reps. Leslie Herod, D-Denver, and Jovan Melton, D-Aurora) prohibits employers from excluding people with a criminal history from applying for a job opening. It does not say that employers can’t consider someone’s criminal history, only that those applicants cannot be automatically excluded from applying. Commendably, the bills’ sponsors did not create a new “right to sue” (aka private right of action) as the enforcement mechanism, instead relying on a state agency to investigate possible violations. This is a procedure that others should emulate if they truly wish to address a perceived problem rather than create incentives for more litigation.

Homeless Right to Sue - HB 1096 (Rep. Melton) is the latest iteration of the so-called Right-to-Rest Act. The bill targets local government ordinances which regulate when and where people are allowed to sleep or camp on public sidewalks, in parks or on other public property. It also compares such ordinances to “cruel and unusual punishment” and allows for enforcement via lawsuit.

Add District Court Judges - Senate Bill 43 (Sen. Pete Lee, D-Colorado Springs, and Bob Gardner, R-Colorado Springs) adds 15 new district court judges in several judicial districts around the state. Given the increased demands on our state’s court system, CCJL supports this bill as a means of ensuring that legitimate claims can be handled without needless expense or delay.

Pay Disparites - SB 85 (Sen. Jessie Danielson, D-Wheat Ridge, and Brittany Pettersen, D-Lakewood) is advertised as “equal pay for equal work.” That’s a worthy goal, but the text of the bill, as introduced, sets too many “litigation traps” by treating every conceivable pay disparity as evidence of discrimination - and grounds for a lawsuit. For example, the bill doesn’t recognize that an employer with offices in Vail, Colorado Springs and Akron has a legitimate reason to pay a different salary to managers at those locations based on the vastly disparate costs-of-living in those communities. Another serious concern is that the bill completely eliminates the authority of the Department of Labor to investigate and enforce wage discrimination claims and turns that authority over to the civil litigation system with privately-hired attorneys acting on behalf of aggrieved employees. The bill also creates significant, additional burdens for businesses in terms of job posting requirements and record keeping.

Increase Lawsuit Damage Caps - SB 109 (Sen. Steve Fenberg, D-Boulder) increases the existing limitations on jury awards for non-economic damages (pain and suffering, emotional stress, loss of enjoyment of life) from the current $468,000 (or $936,000 in extreme cases) by adjusting for inflation. While inflation applies to the cost of goods and services, there’s no way to measure the value of intangibles like “pain and suffering.” There is no doubt that this legislation will increase costs to Colorado families and consumers who will see the value of their present insurance reduced and face the cost of paying higher premiums for additional coverage to keep the same protections today.