In this Capitol Report:
- “Equal Pay for Equal Work” Bill Scheduled for First Senate Committee Hearing Next Wednesday
- “Any Willing Pharmacy” Bill Dies in House Committee
- Colorado Chamber’s Chair’s Roundtable hosts powerhouse panel on the “Role of Corporate Social Responsibility in Driving Business Value”
- Attend a Council Meeting and Hear from our Guest Speakers
- Be in the Know: Follow the Colorado Chamber on Social Media
“Equal Pay for Equal Work” Bill Scheduled for First Senate Committee Hearing Next Wednesday
The importance of a major bill, SB-85, that would upset the apple-cart of worker-employer relations when it comes to sex-based, wage-discrimination claims is demonstrated by the fact that it is the only bill on the agenda of the Senate Judiciary Committee when it convenes next Wednesday, February 20th, at 1:30 p.m. in Senate Committee Room 352.
The bill, titled “Equal Pay for Equal Work Act,” is sponsored in the Senate by Democrat Senators Jessie Danielson (Wheat Ridge) and Brittany Pettersen (Lakewood) and in the House by Democrat Representatives Janet Buckner (Aurora) and Serena Gonzales-Guiterrez (Denver).
In addition, the bill has an additional 45 Democrat House and Senate lawmakers listed as bill sponsors. In short, this bill is a big deal for the legislature’s majority Democrats.
Colorado Chamber’s Position
On January 23rd, the Colorado Chamber’s Labor and Employment Council voted to oppose SB-85 as introduced.
In stakeholders’ discussions with the bill’s legislative sponsors, the Colorado Chamber has conveyed its concerns about the introduced bill, including opposition to provisions in the bill that would:
- Permit workers to file lawsuits (known as a “private right of action”) in State district court alleging sex-based wage discrimination by employers;
- Require that employers post all job opportunities with hourly wages rates for all workers to see;
- Mandate that employers maintain records of a worker’s pay going back six years; and
- Allow the worker to recover back pay going back six years.
The Colorado Chamber is concerned that the introduced bill removes the state administrative process that has been in place for years that allows a worker to file a sex-based wage-discrimination complaint against an employer with the Colorado Department of Labor and Employment (CDLE).
Additionally, the proposal requires an employer to post all job openings and promotional opportunities along with the pay range.
An employer would also be prevented by the measure from asking a job applicant about his or her “prior wage rate history” or from relying “on the wage rate history of a prospective employee to determine a wage rate.” An employer that was found by the director of the Labor Standards Division in the Colorado Department of Labor and Employment to have violated this provision would be subject to “fines of between $500 and $10,000 per violation.”
The bill includes provisions for legal remedies including allowing a State district court to award “economic damages” to the worker. These damages would be the “amount that the employer paid to the complaining employee and the amount that the employee would have received had there been no violation . . . “
The bill would also allow the court to award “liquidated damages” in an amount equal to the economic damages. It defines the term to mean “damages to compensate an employee for the delay in receiving amounts due as a result of an employer’s violation of this Article 5.”
The bill goes on to state:
“If the employer demonstrates that the act or omission giving rise to the violation was in good faith and that the employer has reasonable grounds for believing that the employer did not violate section 8-5-102 (1), the court need not award liquidated damages or may award an amount less than the employee’s economic damages.”
In brief, if a court finds an employer to have acted in “good faith,” the court can still award liquidated damages to the worker.
Finally, the employer could be liable for “legal and equitable relief, which may include employment, reinstatement, promotion, pay increase, payment of lost wage rates and liquidated damages. . .” The employer would also be liable for the worker’s “reasonable costs, including attorney fees.” The worker would not be liable, however, for the employer’s legal and related costs if (a) the case was decided in the employer’s favor or (b) in the case of a frivolous lawsuit dismissed by the court.
Written by non-partisan legislative staff, the bill’s Fiscal Note provides the following analysis of the legislation:
Summary of Legislation
This bill modifies wage discrimination law and creates new provisions regarding transparency in wages and promotions. It removes the authority of the Department of Labor and Employment (CDLE) to enforce sex-based wage discrimination complaints and allows a person to commence a civil action in district court within two years of a violation. A wage differential is allowed where the employer can demonstrate that the wage differential is based on a seniority or merit system, or a system that measures earnings by quantity or quality of production. Employers are prohibited from seeking the wage history of a prospective employee; discriminating or retaliating against a prospective employee for failing to disclose his or her wage history; or prohibiting an employee from disclosing wage information. Employers who violate sex-based wage discrimination law are liable for economic damages and equitable relief and the employee’s reasonable costs, including attorney fees and other legal expenses.
The bill also requires employers to make reasonable efforts to notify all current employees of promotion opportunities on the same day and prior to making a promotion decision. Employers are required to disclose an hourly wage rate or range for all job postings. The CDLE has the authority to enforce the wage and promotion transparency provisions and employers are subject to penalties of $500 to $10,000 per violation. If an employee who brings suit for wage discrimination also demonstrates a violation of the wage and promotion transparency provisions, the court may order appropriate relief, including a presumption that records not kept by the employer can be considered evidence that the violation was not made in good faith.
- 9to5 Colorado
- The Women’s Foundation of Colorado
- Center for Legal Inclusiveness
- Colorado Hispanic Bar Association
- Colorado Plaintiff Employment Lawyers Association
- The Bell Policy Center
For more information on SB-85, contact Loren Furman, Chamber Senior Vice President for State and Federal Relations, at 303.866.9642.
“Any Willing Pharmacy” Bill Dies in House Committee
Assume that Acme Health Benefits, an insurance carrier, contracts for one year with Joe’s Pharmacies to be in its network. Acme tell Joe that it will send 20,000 people to his pharmacies Joe tells Acme that he will sign the network contract for $1 per patient.
If an “any willing pharmacy” bill became law, however, then many of Acme s members could go to any pharmacy instead of just Joe’s Pharmacies.
When Acme goes back to Joe to negotiate a new contract for the second year, Joe tells Acme that he will not continue the contract at $1 per patient. Joe says that, because only 10,000 of Acme’s members used his stores, his new price for the second year will be $2 per patient to sign a new contract with Acme. Acme then passes this cost on to employers and workers who have signed up for Acme’s health-insurance plan.
For the third legislative session in a row, a bill that would allow individuals to go to “any willing pharmacy” to have their prescriptions filled outside of the pharmacy network with which their health insurance carrier has contracted has died with both Republicans and Democrats supporting the bill and opposing it.
The Colorado Chamber’s HealthCare Council opposed HB-1154, “Patient Choice of Pharmacy,” which concerns “the ability of a person eligible for prescription drug benefits to choose the pharmacy at which to fill a prescription drug order.”
The Chamber has opposed similar bills the past two sessions.
- HB18-1097, which was called “Patient Choice of Pharmacy,” concerned just pharmacies; and
- HB17-1247, which was called “Patient Choice Health Care Provider,” was broader but included pharmacies.
Proponents of the bill are concerned about those who live in rural areas who travel long distances to a pharmacy that is affiliated with their health-insurance carrier. The bill would allow individuals to buy prescription drugs at any pharmacy.
A health-insurance insurance carrier contracts with pharmacies, however, as part of its “network sufficiency standards.” If anyone can go to any pharmacy they want, however, the carrier does not have the economies of scale to negotiate a good price with pharmacies, which will drive up the cost of insurance for everyone.
Three Republicans—Representatives Mark Baisley (Roxborough Park), Susan Beckman (Littleton) and Matt Soper (Delta)—joined the majority Democrats to kill the bill. The motion to kill the bill was opposed by Representatives Catlin and Mullica as well as Democrat Representative Yadira Caraveo (Thornton).
The bill’s Fiscal Note, prepared by non-partisan legislative staff, provides this summary of the measure:
This bill prohibits health insurance carriers that cover pharmaceutical services and pharmacy benefit managers (PBMs) that manage such services for a carrier from the following:
- limiting or restricting a covered person’s ability to select a pharmacy of their choice if the pharmacy is licensed and agrees to the terms of the health benefit plan;
- imposing a copayment, fee, or other cost sharing requirement on a covered person, pharmacist, or pharmacy for the covered person’s selection of a pharmacy unless the carrier or PBM places the same copayment, fee, or other cost sharing requirement on all covered persons, pharmacists, or pharmacies in the state;
- imposing any other condition on a covered person, pharmacist, or pharmacy that limits a covered person’s ability to use a pharmacy of the covered person’s choice; or
- denying a chosen pharmacy or pharmacist the right to participate in any of its pharmacy network contracts or as a contracting provider, if certain conditions are met, after a covered person has chosen the pharmacy or pharmacist.
The prohibitions in the bill do not apply to pharmacy services administered to an individual receiving inpatient or emergency medical care in a licensed health facility; insurance carriers that offer managed care plans in which the majority of covered professional services are provided by physicians employed by the carrier; self-funded plans that are exempt from state regulation; or health plans issued for state and federal employees.
For more information on HB-1154 and this issue, email Bill Skewes, Colorado Chamber contract lobbyist.
For news media coverage of this bill, read:
“Rural residents may soon be able to visit pharmacy of their choice,” by Ryan Maye Handy, The Durango Herald, February 9th.
Attend a Council Meeting and Hear from our Guest Speakers
Policy Councils are at the core of the Colorado Chamber’s work and provide an opportunity for dialogue between our members, key legislators and state agency leaders. Influential guest speakers for upcoming councils are listed below.
Labor & Employment:- February 20th
- Joe Barela, recently appointed Executive Director of the CO Department of Labor & Employment
- Pat Teegarden, Legislative Liaison, CO Department of Labor & Employment
- Jeff Fitzgerald, Division Director, Unemployment Insurance
There will be a discussion on the Family Medical Leave Act and how the Department of Labor & Employment would implement the act.
Energy & Environment:
February 27th: Will Toor, Executive Director, Colorado Energy Office
March 27th: Representative Chris Hansen, Joint Budget Committee and Chair of Appropriations Committee.
March 8th: Cary Kennedy, Senior Advisor for Fiscal Policy, Office of the Governor
Please visit our online calendar for a complete list of council meetings.