February 22, 2012

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Spark the Discussion: Organize! The Rising Role of Unions in Colorado’s Medical Marijuana Industry

February 21, 2012 By Leave a Comment
“Spark the Discussion” is a monthly Legal Connection column highlighting the hottest trends in the emerging field of medical marijuana law. This column is brought to you by Vicente Sederberg, LLC, a full-service, community-focused medical marijuana law firm.

Recently, the United Food and Commercial Worker’s Union, Colorado’s largest labor organization, announced it had unionized its first medical marijuana shop in Denver—with more than a dozen shops predicted to follow suit in the upcoming weeks.

According to Colorado’s UFCW President Kim Cordova, “the Union is committed to representing the hard working and compassionate workers in the Medical Cannabis retail centers and promoting guidelines to safeguard the interests of our members and the communities our members work in.”

What does it mean for Colorado’s medical marijuana industry to have union shops?

Colorado’s newest industry is in a tough position.  It faces near-constant attacks from various branches of the federal government including the IRS, Treasury, and, most recently, the Department of Justice.  Just last month, the United State attorney in Colorado, John Walsh, launched an attack on state-legal medical marijuana providers by sending 23 letters to centers, informing them that that were in areas deemed problematic by the federal government and would have to shut down in 45 days or face property seizure and criminal prosecution.

In the face of these mounting problems, the medical marijuana industry needs allies.  And they have found a powerful one in the Union.

At a basic level, labor unions allow workers to organize and engage in “collective bargaining” to promote better wages, benefits, and working conditions.  There is no denying the vast role that unions have played in positively shaping the American workforce with these organizations leading the charge to end child labor, secure a minimum wage and sick leave, and establish workplace safety measures as far back as the 1800’s.

But perhaps the most important role that unions play is their heavy influence over politics.  Beyond pushing for the interests of workers, unions have long been engaged in successful political campaigns, using lobbying and traditional campaign tactics to ensure the longevity of the industries they represent.  Through sophisticated political maneuvering, labor unions have played a crucial role throughout history in helping to establish and legitimize businesses—a lesson that medical marijuana shops may want to heed.   With the public backing of a state and national powerhouse like the UFCW, these fledgling businesses may be viewed in a new light by legislators, many of whom owe their elections in large part to the political backing of unions.

At the dawn of this new industry in Colorado, having mainstream partners such as labor unions may be crucial to the medical marijuana industry’s legitimacy and, quite possibly, its longevity.

Brian Vicente, Esq., is a founding member of Vicente Consulting, LLC, a law firm providing legal solutions for the medical marijuana community. He also serves as executive director of Sensible Colorado, the state’s leading non-profit working for medical marijuana patients and providers. Brian is the chair of the Denver Mayor’s Marijuana Policy Review Panel, serves on the Colorado Department of Revenue Medical Marijuana Oversight Panel, and coordinates the Colorado Bar Association’s Drug Policy Project.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.
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It’s Final! Summary of Benefits and Coverage Required After September 23, 2012

February 21, 2012 By Leave a Comment

Editor’s Note: This article was provided by Holland & Hart LLP. For other legal update articles from the firm, click here.

One of the provisions of Health Care Reform that is sure to impact employers is the required four-page summary of benefits and coverage. Often called the “SBC,” this form is in addition to the existing requirement to issue summary plan descriptions (“SPDs”). Until recently, the effective date for issuing the SBC was March 23, 2012. Thankfully, new guidance gives employers until at least September 23, 2012 to comply.

According to final regulations published February 14, 2012, insurance companies must provide SBCs to individual policy holders and to their insured employer plans starting September 23, 2012. Employer plans (self-funded and insured) must provide an SBC for open enrollment periods on or after that date (for calendar year plans, this will be for the 2013 plan year).

Along with the SBC, these new regulations require employer medical plans to provide employees and beneficiaries with a uniform glossary of terms commonly used in health insurance coverage (such as co-payment, deductible, home health care, etc.). In addition, the regulations include a new requirement to provide 60 days’ advance notice of material modifications. These provisions are also effective for open enrollments after September 23, 2012.

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Colorado Court of Appeals: Employer’s Failure to Obtain Medical Review Constituted a Continuing Violation with a Penalty at a Daily Rate

February 21, 2012 By Leave a Comment

The Colorado Court of Appeals issued its opinion in People the Interest of C.Y. on February 16, 2012.

Workers’ Compensation—Medical Review—Failure to Act—CRS § 8-43-305—Rule 16-­10(B).

In this workers’ compensation proceeding, claimant sought review of a final order of the Industrial Claim Appeals Office (Panel) determining that the penalty imposed against Denver West Marriott and its insurer, New Hampshire Insurance Company, (collectively employer) was properly awarded based on a one-time violation, rather than a continuing violation. The order was set aside and the case was remanded.

Claimant suffered a deflated breast implant as a result of a 2008 industrial injury and had the implant surgically replaced in 2009. She gradually developed firmness, distortion, and discomfort in the breast. On March 31, 2010, an authorized treating physician (ATP) recommended further surgery to replace the implant a second time. On April 1, 2010, employer, without first obtaining a medical review by a different physician or other health-care professional, responded that the surgery was elective and not medically required. On October 7, 2010, the administrative law judge (ALJ) issued an order disagreeing with employer and determining that employer was liable for the second surgery. The ALJ imposed a penalty of $500 for employer’s one-time failure to act.

Claimant contended that the Panel erred in affirming the ALJ’s conclusion that employer committed a one-time violation. CRS § 8-43-305 provides that “[e]very day during which any employer . . . fails to comply with any lawful order . . . shall constitute a separate and distinct violation thereof.” The failure to provide medical review under Colorado Department of Labor and Employment Rule 16-10(B) is, as a matter of law, the type of ongoing conduct that triggers application of this continuing violation provision. Here, under the plain language of CRS § 8-43-305, employer’s failure to obtain a medical review constituted a continuing violation as a matter of law. Therefore, employer violated Rule 16-10(B) for 184 days, and the ALJ and the Panel erred in determining otherwise. The case was remanded for the ALJ to reconsider the amount of the penalty at a daily rate over this time period.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on February 16, 2012, can be found here.

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SB 12-054: Protecting Health Care Workers from Employer Retaliation for Using Best Judgment

February 17, 2012 By Leave a Comment

On January 13, 2012, Sen. Betty Boyd introduced SB 12-054 – Concerning Protection for Employees of Licensed Health Care Facilities Who Exercise Their Own Judgment. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

A licensed health care facility or its agent is prohibited from retaliating against an employee of the licensed health care facility who performs an act or omits an act:

  • That, in the best medical judgment of the employee using the best available practices, is in the best interest of the patient; or
  • When following a patient’s directive.

The bill is assigned to the Health and Human Services Committee; the bill is scheduled for committee review on Thursday, February 16 at 1:30 p.m.

Since this summary, the bill was postponed indefinitely by the Senate Committee on Health and Human Services.

Summaries of other featured bills can be found here.

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Employment Law and Social Media: Rights, Obligations, and Disputes in the Workplace

February 15, 2012 By Leave a Comment

The intersection of social media and the workplace has become a given. Use of social media is rapidly expanding while societal norms regarding exposure of employment-related information continue to erode. The result is an increasingly complex social media environment for employees, employers, and attorneys.

Added to the complicated mix are various cases and National Labor Review Board opinions that attempt to define what recourse an employer has against an employee over social media content. When can an employer fire an employee over what the employee said on their personal social media accounts? When is the employee’s speech protected? The questions can sometimes be hard to answer, especially if the company has an underdeveloped, or no, social media policy.

Once an employment decision is made, a host of new issues arise regarding the discovery of social media. Different rules apply to the discovery process in the context of litigation and mediation, and the distinction of what may or may not be discovered in either situation could make all the difference in a case.

On February 22, 2012, join us at CBA-CLE to learn about employment law and social media trends and how they affect you, your clients, and your practice.

This interactive program, Employment Law and Social Media: Rights, Obligations, and Disputes in the Workplace, will use hypotheticals and audience inquiries to approach numerous issues important for practitioners, including:

  • Recent Court decisions and NLRB opinions and their impact on workplace social media policies;
  • Discovery and use of social media in litigation; and
  • Discovery and use of social media in mediation.

As a primer for the discussion, Magistrate Judge Kristen L. Mix, a faculty member for the program, has provided us with a number of Practice Tips that attorneys should be mindful of when engaging in discovery of social media in litigation:

  1. Seek discovery of social networking information from the opposing party before subpoenaing Facebook or other social networking websites.
  2. Perform a public search for information usually available on a social networking website.
  3. Be mindful of your ethical responsibilities. Hiring a private investigator to “friend” the opposing party may be “inherently deceitful and unethical, even if the investigator uses his own name.”(1) Contacting the opponent yourself would likely be impermissible direct contact, and may also violate the rule providing that a lawyer may not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.(2)
  4. In complex cases, explore the possibility of “unbundling,” or development of a litigation management team to handle electronic data.(3)
  5. This is not your father’s discovery. Successful discovery of social networking information may require significant efforts to educate the judiciary about the fallacy underlying electronic discovery (just because something is electronic, it can be searched and produced instantly) and the actual cost and burden of production.
  6. Advise your clients to be prudent and avoid spoliation sanctions. “The courts have a right to expect that litigants and counsel will take the necessary steps to ensure that relevant records are preserved when litigation is reasonably anticipated, and that such records are collected, reviewed and produced to the opposing party.”(4)
  • (1) Phil. Bar Ass’n Prof’l Guidance Comm. Op. 2009-02 (Mar. 2009), available at http://www.philadelphiabar.org/WebObjects/PBAReadOnly.woa/Contents/WebServerResources/CMSResources/Opinion_2009-2.pdf.
  • (2) See, e.g., Robert S. Kelner & Gail S. Kelner, Social Networks and Personal Injury Suits, N.Y.L.J., Sept. 24, 2009, available at www.law.com/jsp/nylj/PubArticleFriendlyNY.jsp?hubtype=&id=1202434026615.
  • (3) Howard B. Iwrey et al., A Multidimensional Solution to the Problems of Runaway Discovery, 29 No. 6 OF COUNSEL 12 (June 2010) pp. 2-3.
  • (4) Pension Comm. of the Univ. of Montreal Pension Plan v. Bank of Am. Sec. LLC, 685 F. Supp. 2d 456, 472 (S.D.N.Y. 2010).

CLE Program: Employment Law and Social Media – Rights, Obligations, and Disputes in the Workplace [RESCHEDULED]

This CLE presentation has been rescheduled. Check back soon for program information or call (303) 860-0608.
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Colorado Court of Appeals: Religious Organization’s Function Not Primarily Religious and Therefore Unemployment Compensation Wrongfully Denied

February 8, 2012 By Leave a Comment

The Colorado Court of Appeals issued its opinion in Harbert v. Industrial Claim Appeals Office on February 2, 2012.

Unemployment Compensation—Exemption Under CRS § 8-70-140(1)(a)

Claimant sought review of a final order of the Industrial Claim Appeals Office (Panel) affirming the hearing officer’s decision that she was not entitled to unemployment compensation benefits because she was not engaged in covered employment when she was terminated. The Panel’s order was set aside and the case was remanded.

From March 2007 until October 2010, claimant worked in a resale store operated by Evergreen Christian Outreach (EChO). According to its mission statement, EChO was founded by a group of churches in Evergreen “to provide assistance to residents of the Evergreen mountain communities who are unemployed, under-employed, dealing with a long-term illness, or experiencing other forms of personal crisis.” The resale store where claimant worked provides a major source of funding for EChO’s outreach programs. EChO’s facilities are located on the grounds of an Episcopal church, but the resale store is located in a private commercial space.

Claimant separated from her employment and applied for unemployment benefits. A deputy denied her claim, concluding that EChO is a religious organization. The hearing officer also denied her claim because her work was performed for an organization operated primarily for religious purposes and is operated, supervised, controlled, or principally supported by an association of churches. The Panel affirmed and claimant appealed.

The Court of Appeals examined the stipulation under CRS § 8-70-140(1)(a) that exempts an organization if it “is operated primarily for religious purposes and . . . is operated, supervised controlled, or principally supported by a church or convention or association of churches.” Claimant argued that EChO is a nonprofit organization whose primary function is to operate a community food bank and provide limited or temporary assistance for those in need in the Evergreen community. She claimed the work was primarily secular in nature and that EChO is not operated primarily for religious purposes.

The Court looked to the test set forth in Samaritan Institute v. Prince Walker, 883 P.2d 3 (Colo. 1994), in which the controlling factor is “the type of activity actually engaged in, rather than the motivation and impetus for the activity.” In reviewing the hearing officer’s analysis, the Court noted that EChO’s activities were not sufficiently evaluated. The officer observed that EChO’s primary function, the provision of services such as food and clothing, is “not religious per se.” In addition, EChO was a separate legal entity from the churches that founded it. The primary purpose and activity carried out by EChO was the provision of assistance services to those in need, regardless of their religious affiliation or beliefs. Although its motivation was religious, it was operated primarily to perform charitable work for disadvantaged individuals in Evergreen. The Court concluded that the Panel misapplied the law and held that EChO was not exempt under the statute.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on February 2, 2012, can be found here.

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Colorado Court of Appeals: Error to Award Attorney Fees for Post-Filing Attorney Conduct

February 8, 2012 By Leave a Comment

The Colorado Court of Appeals issued its opinion in SRS, Inc. v. Southward on February 2, 2012.

Attorney Fees—C.R.C.P. 11—Applies Only to Pre-Filing Conduct

Steven G. Francis, an attorney, appealed the district court’s order awarding attorney fees to Stanton B. Southward. The order was vacated.

Francis was the attorney for SRS, Inc., which operated an automotive service business. Southward was a co-owner and employee of SRS. On SRS’s behalf, Francis filed a complaint in August 2008 alleging that Southward had converted to his own use a number of company vehicles and violated his employment contract.

By May 7, 2010, Southward had disclosed two documents that proved that one of the vehicles, a van, had not been converted but had been sold to a customer. The trial court first ruled that the disclosure was too close to trial and therefore inadmissible. The trial was continued and Southward filed a motion for reconsideration of the motion, which was granted, rendering the documents admissible.

On August 22, 2010, three days before trial, SRS withdrew its conversion claim concerning the van. At trial, Southward argued that SRS’s witnesses should not be believed with respect to the remaining claims because of the delay in the withdrawal of the claim concerning the van. In rebuttal, Francis argued that the blame for failure to withdraw the claim lay with him, not the witnesses. The jury awarded damages to SRS on its conversion claim and returned a verdict for SRS on the breach of contract claim, but awarded no damages.

After trial, Southward moved for sanctions against Francis, alleging that the failure to promptly withdraw the claim was a violation of C.R.C.P. 11, entitling Southward to an award of fees and costs incurred from May 2010 through August 22, 2010. The court entered judgment in favor of Southward and against Francis for $2,858.65.

On appeal, Francis argued it was error to award Southward attorney fees under C.R.C.P. 11. The Court of Appeals agreed. The Court held that Colorado’s Rule 11 is not as broad as its federal counterpart and only focuses on pre-filing and pre-pleading behavior of the attorney; it does not reach post-filing attorney conduct. Because the sanction was imposed based on post-filing conduct, the court’s award of fees and costs was vacated.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on February 2, 2012, can be found here.

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Tenth Circuit: Insufficient Non-Conclusory Facts to Support Allegation of Employment Discrimination and Retaliation

February 7, 2012 By Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in Khalik v. United Air Lines on Monday, February 6, 2012.

The Tenth Circuit affirmed the district court’s decision. Petitioner is an Arab-American, born in Kuwait, who practices Islam. Respondent hired her in 1995, and she rose to the position of Business Services Representative before being terminated in 2009. Petitioner alleges claims under Title VII of the Civil Rights Act of 1964 for retaliation and discrimination because of race, religion, national origin, and ethnic heritage. Petitioner’s complaint also brings a retaliation claim under the Family and Medical Leave Act (FMLA).

“While the 12(b)(6) standard does not require that [Petitioner] establish a prima facie case in her complaint, the elements of each alleged cause of action help to determine whether [Petitioner] has set forth a plausible claim. . . . To set forth a prima facie case of discrimination, a plaintiff must establish that (1) she is a member of a protected class, (2) she suffered an adverse employment action, (3) she qualified for the position at issue, and (4) she was treated less favorably than others not in the protected class. The burden then shifts to the defendant to produce a legitimate, non-discriminatory reason for the adverse employment action. If the defendant does so, the burden then shifts back to the plaintiff to show that the plaintiff’s protected status was a determinative factor in the employment decision or that the employer’s explanation is pretext. Title VII also makes it unlawful for an employer to retaliate against an employee.”

The Court agreed with the district court that Petitioner’s allegations are the type of insufficient conclusory and formulaic statements disregarded by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1955 (2009). “[Petitioner]’s general assertions of discrimination and retaliation, without any details whatsover of events leading up to her termination, are insufficient to survive a motion to dismiss.” The Court noted that while specific facts are not necessary, some facts are. The non-conclusory facts presented do not sufficiently allege discrimination or retaliation. “There is no context for when [Petitioner] complained, or to whom. There are no allegations of similarly situated employees who were treated differently. There are no facts relating to the alleged discrimination. There is no nexus between the person(s) to whom she complained and the person who fired her. Indeed, there is nothing other than sheer speculation to link the . . . termination to a discriminatory or retaliatory motive. And finally, [Petitioner] alleges nothing that would link her request for FMLA leave, which she provides no details about, to her termination.” Without more, her claims are not plausible under the Twombly/Iqbal standard, and the dismissal was affirmed.

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SB 12-003: Purposes for which Consumer Credit Information Can Be Used by Employers

January 20, 2012 By Leave a Comment

On January 11, 2012, Sen. Carroll and Rep. Fischer introduced SB 12-003 – Concerning the use of consumer credit information by employers. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill creates the “Employment Opportunity Act,” which specifies the purposes for which consumer credit information (i.e., consumer credit reports and credit scores) can be used by an employer or potential employer. Specifically, the bill:

  • Prohibits an employer’s use of consumer credit information for employment purposes if the information is unrelated to the job;
  • Requires an employer to disclose to an employee or applicant for employment (jointly, “employee”) when the employer uses the employee’s consumer credit information to take adverse action against him or her and the particular credit information upon which the employer relied;
  • Authorizes an employee aggrieved by a violation of the above provisions to bring suit for an injunction, damages, or both; and
  • Requires the department of labor and employment to enforce the laws related to employer use of consumer credit information.

Summaries of other featured bills can be found here.

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Aaron Solomon: First Amendment Retaliation in the Context of an Employment Dispute

January 20, 2012 By Leave a Comment

Editor’s Note: The Tenth Circuit issued its opinion in Morris v. City of Colorado Springs on January 18, 2012.

In Morris v. City of Colorado Springs (No. 10-1572), the Tenth Circuit, among other things, affirmed the dismissal of the plaintiff’s First Amendment retaliation claim on the pleadings. The plaintiff was a nurse who worked for Colorado Spring’s Memorial Health System, which is run by the city. The plaintiff submitted a “Notice of Claim” to Memorial, alleging that she has been subject to various torts while a member of the heart surgery team. Shortly thereafter, she was reassigned away from the heart team. The plaintiff alleged that this reassignment constituted improper retaliation, and she also brought Title VII claims based on the underlying conduct.

The Tenth Circuit thoroughly reviewed the test for a First Amendment retaliation claim and concluded, like the district court, that the plaintiff “could not show that her notice contained speech on a matter of public concern.” In so doing, it appeared to hold that a communication “framed as lodging a complaint regarding an employment dispute and seeking damages for it” could never rise to the level of a matter of public concern, unless the subject matter fell within a “narrow range”, such as allegations of corruption by city officials, that was “so imbued with the public interest that speech regarding g it will almost always be a matter of public concern.”

Aaron Solomon is an associate at Hale Westfall and focuses his practice on both commercial litigation and public policy/appellate law. He contributes to the firm’s Rocky Mountain Appellate Blog, where this post originally appeared on January 19, 2012.
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Tenth Circuit: If Employee’s Primary Duty Is Related to Emergency Response or Law Enforcement, Entitled to FLSA Protections

January 5, 2012 By Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in Maestas v. Day & Zimmerman, LLC on Wednesday, January 4, 2012.

The Tenth Circuit affirmed in part and reversed in part the district court’s decision. Petitioners were officers in a private security force that protects Los Alamos National Laboratory. They contend that their employer, Respondent, improperly classified them as exempt employees under the Fair Labor Standards Act (FLSA). The parties disagree over which of Petitioners’ “job duties is ‘primary,’ a determination essential to the classification of their positions under FLSA.” The district court concluded that all Petitioners were exempt executive employees and granted summary judgment to Respondent.

The Court disagreed with the district court’s reasoning. “In order to fall under the executive, administrative, or combination exemptions to FLSA’s overtime protections, an employee’s primary duty must be managerial or administrative, or a combination of the two. . . . However, if an employee’s primary duty is related to emergency response or law enforcement, the employee is entitled to FLSA’s protections.” The Court held that a dispute over the classification of job duties presents a question of fact rather than an issue of law, and that “an employee who supervises subordinates while also conducting front-line law enforcement work performs a non-managerial task. Because there remains a genuine dispute as to whether three of the plaintiffs had this task as their primary duty, summary judgment was proper only against [one] plaintiff  and improper as to the other plaintiffs.”

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Tenth Circuit: No Authority to Suggest that Possibility a Record Might Be Revealed to Unauthorized Readers through Negligent or Reckless Transmission is Sufficient to Violate Privacy Act

December 29, 2011 By Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in Luster v. Vilsack on Wednesday, December 28, 2011.

The Tenth Circuit granted the motion to publish the order and judgment previously issued on December 1, 2011. In the case, the Tenth Circuit affirmed the district court’s decision. Petitioner, a full-time Visitor Information Specialist with the Forest Service, claimed that “(1) she was not selected for a Forestry Technician position because of her gender; (2) she suffered disparate work conditions because of her gender and in retaliation for her Equal Employment Opportunity (EEO) discrimination complaint, and (3) a Forest Service attorney inappropriately disclosed her EEO complaint information in violation of the Privacy Act.” The district court granted summary judgment to the Forest Service on all claims.

The Court agreed with the district court’s analysis. The Court determined that the district court did not err in its pretext analysis of Petitioner’s non-selection discrimination claim. Also, the Court concluded that Petitioner did not present evidence suggesting that her “summer job conditions occurred under circumstances giving rise to an inference of gender discrimination or that the Forest Service’s proffered justification for those job conditions is so weak, implausible, inconsistent, or incoherent that a reasonable factfinder could rationally find it unworthy of credence.” Lastly, the Court found that Petitioner cited “no authority to suggest that the possibility that a record might be revealed to unauthorized readers by negligent or reckless transmission is sufficient to constitute a prohibited disclosure under the Privacy Act.”

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