It’s tempting to propose enshrining March 2, 2023, as a day for commemoration. That’s when a committee of the Colorado House of Representatives showed a little revolutionary spirit by challenging the progressive doctrine of the ruling political party and said no.
House Bill 23-1118 would have required employers to post work schedules two weeks in advance and pay a fine for changing them. The difficulties this would have imposed on the hospitality industry, for one among many, were obvious to everyone. Mother Nature never gives anyone two weeks’ notice when she wants to drop by.
Nor do couples who, while in the heat of passion, contract with wedding planners only to cancel later when Mr. Right turned out to be Mr. Maybe Not Right Now.
Employees’ shifts that weren’t canceled would have to be adjusted to fit other clients.
This bill also would have slammed fast-food franchises, the favorite whipping boy of progressives across the nation.
Where you and I see them as places that have given generations of Coloradans, including people of color and immigrants, their first opportunities at business ownership, and hundreds of thousands of teens and young adults their first jobs or places to make money while pursuing other fields, the progressive fry cooks who concocted HB 1118 see them only as modern-day sweat shops in need of rescuing.
That a big part of the progressive agenda was stopped dead in its tracks with the help of four Democrat votes (the party with a hegemony over the General Assembly) was remarkable to say the least.
It wasn’t always this way, the progressive wave that washed over the Colorado Legislature in 2020 and then grew to tsunami in size in 2022 ushered in a new era of very strong, intraparty factional control.
What the progressives are to Democrats here, ultraconservative factions are to Republicans elsewhere. What it means in an everyday practical sense is that compromise is almost dead, making the defeat of HB 1118 even more extraordinary.
Small-biz blues
Now, for the million-dollar question: Was that defeat a one-off occurrence or the inaugural announcement of a new common-sense coalition? We will have the answer from upcoming votes, but first it’s important to explain why this matters to small business, those employers of 48% of working Coloradans.
Everyone can see the conditions America’s Main Streets are in. Vacant store fronts and help-wanted signs are permanent parts of the landscape.
In its February Small Business Economic Trends report, the nation’s bellwether measurement of the Main Street economy, the National Federation of Independent Business (NFIB) reported, “The Index of Small Business Optimism has been in recession territory all last year and into 2023 … Earnings are dismal. Actual sales trends are negative and expected real sales are also … Everything else is pretty much in the tank. When we ask owners if they were successful in hiring and filling open positions, the answer is ‘no’ …”
So, the economy is not likely to grow much if at all in 2023. The statisticians say we have many more jobs, but firms aren’t noticing it, they’re still looking for applicants.”
NFIB’s monthly reports are aerial views of the Main Street economy. Are things a little better or worse in Colorado? Tough to say. But they are different. You can assign a lot of the blame for the state of things to COVID and its effects and now, inflation, but government policies have put in their kicks, too, and Colorado is no slouch at lacing up its boots.
By comparison
Last session, while Arizona’s Legislature passed a low, flat, state income tax with the same rate for everyone (the majority of small-business owners file under personal income tax rates), Colorado’s lawmakers were busy devising ways to herd more small-business owners into the class-action gulag for juicier lawsuits (HB 22-1071) and, while they were at it, decided to upgrade allegations of wage theft to felony theft (HB 1267).
This session, while Montana’s Legislature passed measures giving taxpayers some of their money back and threw in property tax relief as a bonus, Colorado’s lawmakers put a similar idea (HB23-1063) up before a firing squad at its first committee hearing and pulled the trigger.
Now, it can concentrate fully on expanding paid leave benefits without really leaving the job (SB23-046) and making the sweet-sounding-but-difficult-to-define concept of “pay equity” even murkier (SB23-105). Watch out, you employees with experience. By the way, not giving equal pay for equal work violates the Equal Pay Act of 1963.
The issue of unemployment insurance is the area to see how much Colorado differs from surrounding states and how much more it demands from small-business owners. Every working Coloradan has a stake in the health of the state’s Unemployment Insurance Trust Fund. It is from that pot of money that unemployment benefits are paid when needed. What once was a known fact, policymakers must now be constantly reminded that only employers pay into the fund.
Colorado was one of 22 states that had to borrow from the federal government to keep its UI trust fund solvent and checks flowing. When the federal spigots, through such programs as the CARES Act and the American Recue Plan Act, were opened full during the pandemic, some states, such as neighboring New Mexico, used the money to pay off their state’s UI debt.
Colorado decided to do it piecemeal through Senate Bill 234, which put NFIB in the unenviable position of having to oppose a measure that contained $600 million for Colorado’s insolvent Unemployment Insurance Trust Fund, which NFIB very much wanted. In the end, the unchecked expansion of new programs and benefits made it a cost too high.
That high cost will get even higher should House Bill 1078 pass. It would mandate that minor children of those on unemployment will receive $35 per week, which would also raise a possible illegality: payments from the unemployment trust fund made to someone not entitled to draw from the trust fund.
Meanwhile, House Bill 1196, upends years of worker’s compensation policy. Under law in Colorado, an injured worker does not carry a burden of proof or demonstrate negligence by the employer for an injury covered under workers compensation; conversely, the employer cannot be sued or held liable for the injury.
HB1196 would amend the Colorado Youth Employment Opportunity Act to create additional right of action in law or tort by aggrieved parties, including parents of children, if the employer is found to have violated a youth labor law.
This is how Colorado’s unemployment insurance trust fund and workers’ compensation system are now viewed by those in charge of the legislative agenda: Not as originally intended for those who lost their job through no fault of their own or were injured on the job, but as pots of money for purposes unlimited. This is rapidly giving Colorado a distinction most states will not seek to emulate but point to as a road not to journey down.
Will guv step in?
This is why the defeat of HB23-1118 surprised so many small-business owners who keep an eye on the Legislature. By making his displeasure with HB23-1118 known, Gov. Jared Polis gets a bit of credit.
In the effective absence of an opposition political party in Colorado to serve as a check-and-balance against the extremities of the other party, small businesses would like to see the governor take more of a role on their behalf and announce early and loudly other legislation he would like to see not reach his desk.
Being on the side of Main Street, mom-and-pop small businesses would be a nice credential for a rumored presidential candidate to have. In the meantime, it would also be nice to have the idea of a common-sense coalition move from fantasy to incarnation.
Seventy-four percent of the people I represent employ between one and nine people. Almost all of them are filling in for the employees they cannot find. For some, that means doing the cooking, serving, cashiering, and mopping the floor before closing. For other professions, it means being there from opening to closing, sometimes by yourself.
Because even pre-COVID, small-business owners never had the money to hire human resource managers and compliance officers, or in-house legal staff, they did the paperwork at a great consumption of their time that could have been better spent on myriad ways much more beneficial to their enterprises, employees and communities.
Given what they’ve gone through, you’d think heaping more on them and the tab for their costs is an economic cruelty worthy of a new law against it. Yet, this Legislature does not disappointment.
Although House Bill 23-1006 wouldn’t cost small-business owners more money, it does ask that they make their employees aware of the tax credits available to them.
That’s right, small-business owners would be asked to be financial advisers—on top of everything else. That should make many of them want to scream. Let’s hope it’s not the final straw that makes many of them want to close up shop permanently.
Tony Gagliardi is Colorado state director for the National Federation of Independent Business.