NFIB Helps Win Suspension of Employee-Commuting Rule

Date: July 23, 2021

Proposed requirement would have effectively disallowed freedom of choice in how workers get to and from work

Imagine a government agency telling you that your employees were not allowed to commute to work.

This is not some futuristic dystopia from a cheap science fiction paperback, this was a real-life proposal from an agency within the Colorado Department of Public Health & Environment (CDPHE).

As with most horrendous ideas, it started with the best of intentions—clean air. On May 30, 2019, Gov. Jared Polis signed HB19-1261 into law, which set time goals for reducing the state’s greenhouse gas emissions. The details, of course, were left for the affected bureaucracies to come up with.

And come up with a whopper the Air Pollution Control Division within the CDPHE did, labeling it the Employee Traffic Reduction Program—19 pages of small print called Regulation No. 22.

In the proposed regulation were requirements on employers to enact policies such as flexible scheduling, remote work, public transportation options, and ridesharing. With absolutely no understanding of the regulatory burdens employers are already under with compliance and cost, the proposed regulation also called on them to identify an “employee transportation coordinator” and survey their employees on how they get to and from work.

No need to tell small-business owners where all of this was leading.

Enter NFIB

A coalition of business associations formed to fight this rule, but when NFIB Colorado joined the coalition the case could be made that all businesses would be harmed. The proposed regulation was limited to firms with 100 or more employees, the average NFIB member has between five and 10 employees.

“Never ever believe that any law or regulatory proposal aimed at big businesses will not eventually work its way down to ensnare small businesses,” said NFIB Colorado State Director Tony Gagliardi. “Congress recognized the difficulties small-business owners face and capped its laws at 50 or more employees. But Colorado, in such examples as paid leave, and employer discrimination rules, aims its measures at employers with just 1 employee. Additionally, many small businesses provide goods and services to bigger businesses.” As regulatory compliance costs increase for large businesses, the same rings true for small business.

After NFIB was given full-party status to take part in the formal process by the Air Quality Control Commission (how imperial is that!), Gagliardi teamed up with Elizabeth Milito and Rob Smith of NFIB’s Small Business Legal Center to present a pre-hearing statement on July 8.

In NFIB’s statement, it noted “The ETRP raises serious legal, policy, and practical issues, which the AQCC has not sufficiently considered or addressed prior to proposing this program. NFIB Colorado, therefore, urges the AQCC to reconsider its planned adoption of this program, or in the alternative, make compliance voluntary.

“The basic liberty of individuals to travel to places of their employment, and back home, in the way they see fit, safe and secure should not be infringed. An individual should be free to travel in a manner which works for their individual circumstances. The ETRP fails to account for a myriad of individual considerations that go into the independent decision about how to commute to and from one’s place of employment.”

NFIB member Eric Wallace, Co-founder and President of Lefthand Brewing in Longmont, intended to point out that “Employees without access to affordable housing in close proximity to the workplace and who are unable to access reliable and affordable public transportation have no choice but to commute by an SOV [single occupancy vehicle]. Employers find that the farther an employee resides from the workplace the less likely that employee will remain with the employer. Employees desire to reside close to their place of work, however, for many it is impossible due to the lack of affordable housing.”

Regulation No. 22 Withdrawn!

In a July 19 letter, the CDPHE announced it would revise its proposal. “After reviewing the various prehearing statements in this rulemaking, the state recognizes that many of the businesses, employees, and local communities that will be impacted by the rule have concerns about the Employer Traffic Reduction Program (ETRP) as currently proposed.

“Recognizing these concerns, the Department will revise its ETRP proposal to first focus on data gathering components to establish a strong baseline for future policy paired with setting a strong foundation through a voluntary trip reduction approach. This new proposal is based on the recognition that lasting and meaningful success will require strong buy-in from employers and employees who are subject to the program, and a pilot phase will facilitate our understanding of real world implementation successes and challenges.”

The Importance of Fulltime Representation in State Government

There is never a long period of rest for small-business owners. Regulation No. 22 came to light long after the Legislature had adjourned for the year, cooked up by a state agency.

This is why NFIB has a presence not just in Congress but also in all 50 states because without eternal vigilance, all manner of harm can visit Main Street enterprises.

“Legislatures may adjourn but state bureaucracy is working over-time,” said Gagliardi. “NFIB is recognized as being the true voice of small business, but our members give our voice its resonance, so I thank Eric Wallace for answering the call to help his fellow small-business owners.”

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