Warning Sounded About Employer Impact of CO Ballot Measures

September 17, 2008 (PLANSPONSOR.com) - Five ballot initiatives on Colorado's November general election ballot could have a substantial impact on employers in the state, according to a client alert from a law firm specializing in workplace law.

The Jackson Lewis LLP bulletin said the ballot initiatives could represent a good deal of potential legal liability for employers. “If approved by Colorado voters in November, these amendments would require significant changes to the current policies and practices of most Colorado employers, and could entail significant legal risk and financial exposure,” the law firm wrote.

The item getting the most public attention, Amendment 47, the “Colorado Right to Work Amendment,”  proposes to amend the state Constitution to make Colorado the 23rd right-to-work state. This means employees could not be required to participate in a labor union or pay union dues as a condition of employment.

According to the law firm, the other four measures include:

  • Amendment 53 – proposes to amend an existing Colorado statute to expand corporate criminal liability to “Executive Officials” of a corporation.  The term “Executive Officials” includes individual officers, directors, managing partners, members, and sole proprietors.  Under Amendment 53, upon conviction, Executive Officials may be fined, imprisoned, or both if they knowingly failed to take action in situations where the company has not performed a duty imposed by law.  A complete affirmative defense is established if, prior to being charged, the Executive Official reports all facts of which he or she is aware to the Attorney General.
  • Amendment 55 – proposes to eliminate employment “at will” in Colorado by amending the Colorado constitution to require that employers have “just cause” before terminating or suspending any employee with at least six consecutive months of employment.  It further requires employers discharging or suspending an employee to provide the employee with written documentation supporting the “just cause” upon which the employer relied.  Examples of “just cause” as proposed by the amendment include an employee’s incompetence, substandard performance, neglect, repeated violations of written policies and procedures, and gross insubordination, among others.  Amendment 55 would not apply to businesses with fewer than 20 employees, government entities, and most nonprofit organizations. 
  • Amendment 56 - proposes to amend the Colorado constitution to require that employers with 20 or more employees provide major medical health-care coverage to employees.  The state and its political subdivisions are exempt from the definition of an "employer."  Employers could satisfy their burden under Amendment 56 either by offering insurance coverage to employees directly, or by paying into a proposed Health Insurance Authority empowered to contract with health insurers to provide coverage. 
  • Amendment 57 - proposes to add a new section to the Colorado Revised Statutes to require Colorado businesses with 10 or more employees to provide a safe and healthy workplace.  Amendment 57 also would allow injured employees to recover damages in addition to those available under the current workers' compensation scheme.  Amendment 57 would subject employers who fail to provide employees with a safe and healthy workplace to liability for compensatory and exemplary damages (such as pain and suffering, emotional distress, mental anguish, and the like), in addition to the traditional workers' compensation benefits.