October 22, 2014

The Intersection of Lawful Off-Duty Activities and Employment Discrimination

A few years ago, the national and local news ran a story about a man who was employed by a company that distributes Budweiser beer and was fired for drinking a Coors (click here for the Denver Post story). The man said that the company president’s son-in-law saw him sipping the Coors, and he was terminated two days later.

We know there are two sides to every story, and the article focused on the man’s story, not the employer’s. However, if what the man said was true, the employer violated the Lawful Activities Statute, C.R.S. § 24-34-402.5. This statute provides “It shall be a discriminatory or unfair practice for an employer to terminate the employment of any employee due to that employee’s engaging in any lawful activity off the premises of the employer during nonworking hours. . . .” The statute applies only to employees, not job applications.

The statute enumerates three exceptions to this rule, if the conduct: (1) relates to a bona fide occupational requirement; (2) creates a conflict of interest; and (3) is rationally related to the employment activities.

In the beer case, the employer claimed that the employee’s activity fell under all three exceptions–the employer stated that the employee was terminated to avoid a conflict of interest, and that his conduct was rationally related to a bona fide occupational requirement.

The beer case never went to trial, but the issue is not uncommon in employment disputes. Very few cases have interpreted the statute, however; Marsh v. Delta Air Lines, Inc., 952 F. Supp. 1458 (D. Colo. 1997) provides most of the guidance on the issue.

To learn more about the intersection of lawful off-duty activities and employment discrimination, don’t miss CBA-CLE’s Employment Law Conference April 4 and 5 at the Denver Marriott City Center. Click the links below to register online or call (303) 860-0608.

CLE Program: 2013 Employment Law Conference

This CLE presentation will take place on Thursday and Friday, April 4 and 5, 2013, at the Denver Marriott City Center. Click here to register for the live program.

Can’t make the live program? Click here to order the homestudy.

Governor Hickenlooper Signs Several Bills Into Law

Governor Hickenlooper continues to sign bills into law as they make it through the House and Senate. To date, he has signed 46 bills into law since January 31, 2013. Most recently, he signed 15 bills on March 8, 2013. Five of these bills are summarized here.

The governor also signed four bills on February 27, 2013, which are summarized here.

Prior to this, the governor signed 23 Joint Budget Committee bills and two other bills on February 19, 2013.

For a complete list of the governor’s legislative decisions to date, click here.

Colorado Supreme Court: Juvenile Justice System is Separate Statutory Framework from Adult Criminal Justice System and Provisions Are Not Interchangeable

The Colorado Supreme Court issued its opinion in In re People in the Interest of W.P. on Monday, February 11, 2013.

Competency to Proceed in the Juvenile Justice System—Availability of Second Competency Evaluation as of Right—Indigent Alleged Juvenile Offender—Rule Discharged.

In this original proceeding, the Supreme Court considered whether an indigent alleged juvenile offender was entitled as of right to a second competency evaluation at state expense. Two days after W.P.’s arrest on allegations of sexual assault on a child, and one day after the juvenile division of the Adams County District Court appointed a public defender to represent him, the court ordered W.P. to undergo a competency evaluation at state expense. After receiving the evaluation report, the court made a preliminary finding that W.P. was competent to proceed in the case. Citing ongoing concerns about her client’s mental health, the public defender objected, requesting a competency hearing pursuant to CRS § 19-2-1302(2) of the Colorado Children’s Code and filing a motion for a second competency evaluation at state expense pursuant to CRS §§ 16-8.5-106 and -107 of the Colorado Code of Criminal Procedure. At the motion hearing, the public defender stated that “[b]ecause the juvenile code is silent, they are referring to the adult code,” which entitles a criminal defendant to a second competency evaluation at state expense. Concluding that the Children’s Code was “specifically silent on that issue,” the district court determined that the adult competency provisions did not apply to this case.

The Court held that the district court did not abuse its discretion when it denied the public defender’s request for a second competency evaluation pursuant to CRS §§ 16-8.5-106 and -107, because these adult competency provisions do not apply in juvenile justice proceedings either explicitly or by implication. The Court concluded the General Assembly created two distinct competency frameworks: (1) promoting the criminal justice system’s goal of just punishment; and (2) advancing the juvenile justice system’s goal of appropriately sanctioning juvenile offenders, taking into consideration their own and society’s best interests. The juvenile competency provisions require a court to order an evaluation at any stage of the proceedings if it develops doubts about the alleged juvenile offender’s competency that are not satisfied by available information. The Court discharged the rule and returned the case to the district court for further proceedings.

Summary and full case available here.

Colorado Court of Appeals: Plain Meaning of C.R.S. § 12-47.1-521 Gives Court of Appeals Exclusive Jurisdiction to Review Rule-Making Actions of Gaming Commission

The Colorado Court of Appeals issued its opinion in Board of County Commissioners of Gilpin County v. City of Blackhawk on Thursday, October 11, 2012.

Subject Matter Jurisdiction—Rule-Making Proceeding—CRS § 12-47.1-521.

Plaintiffs, the Board of County Commissioners of Gilpin County, Forrest Whitman, Bruce Schmalz, and Connie McLain (collectively, Gilpin County) and defendant, the City of Black Hawk (Black Hawk), appealed the district court’s order dismissing their claims against defendants, the Colorado Limited Gaming Control Commission (Commission), the Colorado Division of Gaming (Division of Gaming), Colorado State Treasurer Walker Stapleton, the Board of County Commissioners of Teller County (Teller County), the City of Cripple Creek (Cripple Creek), and the City of Central (Central), for lack of subject matter jurisdiction pursuant to CRCP 12(b)(1). The order was affirmed.

This case arose from a rule-making proceeding before the Commission. The proceeding addressed the interpretation of the phrase “gaming revenue” as used in the Colorado Constitution.

At a Commission hearing, the Division of Gaming proposed an amendment to the Commission’s Rule 24 that reflected its interpretation of “gaming revenue” and, in response, Gilpin County proposed its own amendment. The Commission adopted the Division of Gaming’s amendment.

Gilpin County then filed a complaint against defendants, seeking judicial review of the Commission’s rule-making proceeding. Defendants, excluding Black Hawk, filed a motion to dismiss for lack of subject matter jurisdiction under CRCP 12(b)(1), which was granted by the district court.

On appeal, Gilpin County argued that CRS § 12-47.1-521 does not give the Court of Appeals exclusive jurisdiction to review the rule-making actions of the Commission. The Court, relying on the plain meaning of the statute, held that it does. Therefore, the district court was correct that it lacked jurisdiction to review the Commission’s rule-making actions.

The Court also considered whether Gilpin County and Black Hawk had claims for declaratory relief under CRCP 57, because review under CRS §§ 12-47.1-521 and 24-4.106 do not provide adequate relief for their constitutional challenges to the Commission’s rule-making actions. The Court held they do not have claims for declaratory relief because the statutory sections provide adequate relief in these circumstances. Here, adequate relief was provided because Gilpin County and Black Hawk were parties to the rule-making proceeding. The order was affirmed.

Summary and full case available here.

Colorado Court of Appeals: C.R.S. § 18-3-203(1)(f) Does Not Require Consecutive Sentencing but Court has Discretion to Sentence Consecutively

The Colorado Court of Appeals issued its opinion in People v. Diaz on September 27, 2012.

Assault—Consecutive Sentencing—CRS § 18-3-203(1)(f).

Defendant appealed the sentence entered on a jury verdict finding him guilty of second-degree assault. The sentence was vacated and the case was remanded to the district court for resentencing.

While serving a sentence on other charges, defendant punched a prison guard in the eye. On a second occasion, he threw a cup that hit a guard in the mouth. The second assault was tried first. Defendant was found guilty, and he was sentenced to ten years in the custody of the Department of Corrections. The next day, defendant was found guilty of the first assault, and he was sentenced to ten years in prison, to be served consecutively to the sentence imposed for the second assault.

On appeal, defendant contended that the district court erred by ruling that CRS § 18-3-203(1)(f) requires that the sentence for the first assault be served consecutively to the sentence for the second assault. CRS § 18-3- 203(1)(f) requires consecutive sentencing only when a defendant is serving a sentence (and not merely confined on unresolved charges) at the time of the assault. Therefore, the district court erred in ruling that the sentence for the first assault must run consecutively to the sentence for the second assault. Nonetheless, the court had discretion to order the sentence for the first assault to run consecutively to the sentence for the second assault. On remand, the court must exercise its discretion in determining whether the sentence for the first assault should be served consecutively to the sentence for the second assault.

Summary and full case available here.

Colorado Court of Appeals: Secretary of State Exceeded Rulemaking Authority by Promulgating Rules that Modify or Contravene Statutory or Constitutional Provisions

The Colorado Court of Appeals issued its opinion in Colorado Common Cause v. Gessler, Secretary of State on August 30, 2012.

Rulemaking Authority—Campaign Finance Laws.

This case arose out of a challenge to the Colorado Secretary of State’s (Secretary) rulemaking authority brought by plaintiffs, Colorado Common Cause and Colorado Ethics Watch, pursuant to CRS § 24-4-106. The Secretary appealed the trial court’s order finding he exceeded his rulemaking authority in promulgating Rule 4.27. [Rule 4.27 has since been renumbered as Rule 4.1, 8 Code Colo. Regs. 1505–6.] The order was affirmed.

In 2002, Colorado voters adopted the Campaign and Political Finance Amendment (Amendment), which sets forth specific disclosure requirements that apply to various categories of participants in the elections process. The Amendment also regulates “issue committees” that advocate for or against ballot issues or questions. The Amendment incorporates the registration and disclosure requirements set forth in the Fair Campaign Practices Act (Act). In November 2010, a panel of the Tenth Circuit held in Sampson v. Buescher, 625 F.3d 1247 (10th Cir. 2010), that the financial burden of complying with the registration and reporting requirements for issue committees was substantial and the public interest in such information was minimal.

In response to Sampson, the Secretary commenced a rulemaking process to implement the decision. As part of this process, the Secretary published proposed Rule 4.27, which ultimately was adopted.Rule 4.27 states that “[a]n issue committee shall not be subject to any of the requirements of [the Amendment] or [the Act] until the issue committee has accepted $5,000 or more in contributions or made expenditures of $5,000 or more during an election cycle.” The contributions and expenditure made before reaching this threshold are not required to be reported.

Plaintiffs sued under CRS § 24-4-106. The trial court held that the Secretary had exceeded his rulemaking authority and dismissed the Secretary’s counterclaim for a declaration that the definition of issues committee is unenforceable until such a rule is adopted.

The Court of Appeals noted that an agency does not have authority to promulgate rules that modify or contravene statutory or constitutional provisions. Rule 4.27 creates a contribution and expenditure threshold of $5,000 that triggers an issue committee’s duty to register and disclose. The Act establishes a threshold of $200. On its face, Rule 4.27 conflicts with the clear requirements of Colorado law. Thus, unless Sampson abrogated the $200 threshold, the Secretary lacked the authority to promulgate the rule. The Secretary argued Sampson did just that. The Court disagreed.

The Tenth Circuit declined to address the facial challenge to Colorado’s campaign finance laws, holding only that the application of those laws under the specific facts of Sampson unconstitutionally burdened their freedom of association. The Circuit specifically acknowledged that Colorado campaign finance laws may be constitutionally applied outside of the context presented in Sampson. Consequently, Rule 4.27 sweeps far too broadly. The rule was set aside as void and the order was affirmed.

Summary and full case available here.

Colorado Court of Appeals: C.R.S. § 10-4-110.5 Only Mandates Automatic Renewal of Commercial Automobile Insurance Policies

The Colorado Court of Appeals issued its opinion in Progressive Casualty Insurance Co. v. Moore on August 30, 2012.

Denial of Benefits—Statutory Notice Requirements—Commercial Versus Personal Policies.

In this declaratory judgment action, S. Bryan Moore appealed the judgment entered in favor of Progressive Casualty Insurance Company. The judgment was affirmed.

Moore was involved in a car accident. Progressive Casualty Insurance Co. (Progressive) denied his claim for insurance benefits because his automobile insurance policy had expired months earlier.

Moore contended that the trial court misapprehended the applicability of CRS § 10-4-110.5. Specifically, Moore argued that the policy had renewed automatically because Progressive had failed to comply with the statutory notice requirements. However, § 10-4-110.5 applies only to commercial automobile insurance policies, and Moore’s policy was not commercial. Therefore, the trial court’s ruling was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Nonparent Lacked Standing under CRS 14-10-123 to Petition for Parental Responsibilities

The Colorado Court of Appeals issued its decision in In re the Parental Responsibilities of D.T., and Concerning Lavattiata on August 30, 2012.

Allocation of Parental Responsibilities—Nonparent—CRS § 14-10-123(1)(c).

Crystal Lavattiata appealed from the judgment dismissing her petition for parental responsibilities for D.T., who is the child of Christina Trujillo (mother). The judgment was affirmed and the case was remanded.

Mother and Lavattiata became acquainted when mother was a teenager and she attended school with Lavattiata’s children. After mother gave birth to D.T. in 2003, she moved into Lavattiata’s home, and Lavattiata assisted her in caring for the child. Although mother moved out of Lavattiata’s home when D.T. was 6 months old, Lavattiata continued to assist mother with D.T.’s care until 2010, when mother ended Lavattiata’s time with him. Lavattiata subsequently petitioned for an allocation of parental responsibilities. The trial court concluded that Lavattiata did not have standing under CRS § 14-10-123(1)(c) and dismissed Lavattiata’s petition.

On appeal, Lavattiata contended the trial court erred by dismissing her petition for parental responsibilities. A nonparent can attain standing under CRS § 14-10-123(1)(c) if the nonparent has had the physical care of the child for six months or more and commences an action seeking parental responsibilities within six months of the termination of such care. Here, mother at all times acted as D.T.’s parent and directed his care. Lavattiata functioned in a grandmother-like role to D.T. and provided care for D.T. at mother’s direction and under her supervision. Mother remained in control of D.T.’s care by continuously monitoring and directing Lavattiata’s actions with D.T., and then terminating Lavattiata’s care of the child when Lavattiata refused to follow her directions. Thus, the trial court did not err in concluding that Lavattiata lacked standing under CRS § 14-10-123(1)(c). The judgment was affirmed, and the case was remanded to the trial court for determination of mother’s appellate attorney fee request under CSR § 14-10-119.

Summary and full case available here.

Colorado Revised Statutes Now an eBook for Mobile Devices

We are excited to announce that Circuit Media, in partnership with CBA-CLE, has developed a 3-volume, digital version of the Colorado Revised Statutes (C.R.S.). An essential part of any attorney’s work day, the C.R.S. eBook will be available for purchase and download on any eReader (this includes your iPad, iPhone, Droid, and Kindle) for research on the go.

Benefits of using the C.R.S. eBook:

  1. Officially sanctioned version using the official text of the C.R.S. – ensuring accuracy and integrity
  2. Access anywhere, any time – no Internet connection needed
  3. Provides you with productivity tools to make your work easier including highlighting, copy and paste, bookmark and note creation
  4. Keyword and text search capabilities
  5. All 43 Titles accessible at your fingertips without the headache (and backache!)

The C.R.S. eBook will be utilized by thousands of attorneys daily. Looking for attorney referrals to increase your brand awareness or your business? Advertising within the C.R.S. eBook is an easy and cost-effective way to expand your net.

For all the details, email info@circuitmedia.com.

The complete eBook information guide and advertising order form can be read below, or click here to download or print it.

Colorado Revised Statutes Now an eBook

Colorado Court of Appeals: No Abuse of Discretion in Finding that DNA Evidence and Procedures Used by Expert Were Reliable

The Colorado Court of Appeals issued its opinion in People v. Tunis on August 2, 2012.

Sexual Assault—DNA Evidence—Jury—Sexually Violent Predator.

Defendant appealed from the judgment of conviction and sentence in this sexual assault case. The judgment and sentence were affirmed.

The victim was sexually assaulted in her home. Defendant ultimately was convicted of sexual assault and second-degree burglary, both class 3 felonies, and sentenced to the Department of Corrections for an indeterminate term of twelve years to life. His sentence included a determination that he qualified as a sexually violent predator.

Defendant contended that the Y Chromosome-Short Tandem Repeat (Y-STR) DNA evidence, which was admitted through expert testimony, was unreliable and, therefore, the trial court erred by admitting it. The analyst who conducted the testing and testified about it was properly qualified and admitted as an expert in forensic DNA analysis. The analyst testified that she used a generally accepted scientific metric for conducting the Y-STR analysis. The Court of Appeals concluded that the trial court did not abuse its discretion in finding that the exclusion statistics and the sample size of DNA that the expert used were reliable. Therefore, the trial court did not abuse its discretion in admitting this evidence.

Defendant also contended that the trial court erred by releasing a juror who repeatedly fell asleep and replacing him with an alternate juror. Defendant failed to show that the remaining jurors were unfair or biased, or that he was prejudiced by the dismissal and replacement of the juror. Therefore, the court’s decision to replace the sleeping juror was not an abuse of discretion.

Finally, defendant contended that the trial court erred by determining he was a sexually violent predator within the meaning of CRS § 18-3-414.5(1)(a)(III). The court concluded that defendant was a sexually violent predator because he promoted a relationship with the victim primarily for the purpose of sexual victimization. Further, defendant threatened the victim in an effort to keep her quiet during the assault, pulled her hair, and repeatedly forced her head into a position from which she could not see him during the assault. Thus, the evidence at trial supports the court’s conclusion. The judgment and sentence were affirmed.

Summary and full case available here.

Colorado Court of Appeals: Claimant Seeking Workers’ Compensation Benefits for Solely Psychological Claim Has Heightened Burden of Proof

The Colorado Court of Appeals issued its opinion in Kieckhafer v. Industrial Claim Appeals Office on July 19, 2012.

Workers’ Compensation—Burden of Compensability Under CRS § 8-41-301(2)(a).

Claimant appealed the final order of the Industrial Claim Appeals Office (Panel) affirming the administrative law judge’s (ALJ) dismissal of her claim for benefits. The order was affirmed.

Claimant worked as a nurse in the women’s forensics unit of employer, the Colorado Mental Health Institute–Pueblo. Claimant began experiencing work-related emotional distress and sought psychological help. Eventually, she filed a claim for workers’ compensation benefits for her “mental/emotional distress.”

The ALJ determined claimant had failed to introduce necessary evidence from a mental health professional establishing that she “suffered a recognized disability arising from a psychologically traumatic event.” Consequently, the ALJ held that claimant had not met her burden of demonstrating entitlement to benefits for her “mental–mental” claim. The ALJ denied and dismissed the claim. The Panel affirmed and claimant appealed.

Claimant argued that CRS § 8-41-301(2)(a) imposes an insurmountable obstacle to claimants seeking medical benefits for their emotional injuries. The Court of Appeals disagreed. To receive benefits, an injured worker has the threshold burden of establishing, by a preponderance of the evidence, that he or she has sustained a compensable injury proximately caused by her employment. Here, claimant was claiming “mental–mental” injuries, in which “mental impairment follows solely an emotional stimulus.” This requires a “heightened standard of proof” to “help prevent frivolous or improper claims.” The statute requires “the testimony of a licensed physician or psychologist” to establish the claim. Because claimant failed to introduce any such evidence, the order denying and dismissing her claim was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Homeowners’ Liability to Injured Contractor Limited by Statutory Damages Cap

The Colorado Court of Appeals issued its opinion in Cavaleri v. Anderson on July 19, 2012.

Premises Liability—CRS § 8-41-401(3).

In this premises liability case, Chris Cavaleri (contractor) and Magdalena Cavaleri (wife) appealed the trial court’s judgment dismissing their personal injury claims against Aaron and Heidi Anderson (homeowners) with prejudice. The judgment was affirmed.

Contractor was the sole proprietor of a business and did not carry workers’ compensation insurance on himself. He was hired by homeowners to do some tiling work on their home. As he walked down their front steps after completing the work, he leaned on a wooden railing and it gave way, causing him to fall and sustain injuries. Contractor and his wife brought this premises liability action, seeking economic and noneconomic damages.

Before trial, the court asked the parties about the impact of CRS § 8-41-401(3) on contractor’s claims. The court ruled that the $15,000 limitation on damages applied to contractor’s claims. Homeowners immediately tendered the statutory limit. The trial court dismissed the action with prejudice and contractor appealed.

Contractor argued that CRS § 8-41-401(3) did not apply because homeowners were not required to obtain workers’ compensation insurance covering contractor and, because no coverage was required, homeowners were not among the individuals protected by the statutory damages cap. The Court of Appeals disagreed. The Court noted that the purpose of the section is to encourage participation in the workers’ compensation system and limit exposure of contractors who obtain coverage from lawsuits or claims brought by uncovered independent contractors injured on the job.” [Snook v. Joyce Homes, Inc., 215 P.3d 1210, 1215 (Colo.App. 2009).]

Here, homeowners are not general contractors and are excluded from the Workers’ Compensation Act. However, contractor provided no support for his argument that this somehow kept him from obtaining workers’ compensation insurance for himself. Contractor’s argument failed to address the express inclusion of “sole proprietor[s] who [are] not covered under a policy of workers’ compensation insurance” among the individuals who may bring an action against a negligent third party, but whose damages will be limited to $15,000 if they elect to forego workers’ compensation insurance. The dismissal with prejudice was affirmed.

Summary and full case available here.