February 13, 2016

e-Legislative Report: 2/3/2016

Editor’s Note: Yesterday, we erroneously published an e-Legislative Report from 2015. The current e-Legislative Report is below. We apologize for the confusion.

e-Legislative Report

Hello loyal e-leg report readers, here is this week’s installment of the world under the Gold Dome; as always, we welcome your feedback, thoughts, comments and questions.  This news report is designed to keep you up to date on the activity of interest to the bar, and to lawyers across practice areas that are happening at the Capitol.

Things move pretty fast this time of year, and we’re off to a busy start – the legislature has released over 300 bills for consideration, committees are meeting and negotiations and amendments are happening hundreds of times a day.  The capitol is humming for sure!

Feel free to drop me a line on how we are doing or raise an issue on a piece of legislation. Contact me at jschupbach@cobar.org

CBA Legislative Policy Committee

For followers who are new to CBA legislative activity, the Legislative Policy Committee (“LPC”) is the CBA’s legislative policy making arm during the legislative session. The LPC meets weekly during the legislative session to determine CBA positions from requests from the various sections and committees of the Bar Association.  Members are welcome to attend the meetings – please RSVP if you are interested.

LPC Meeting held Friday, January 29, 2016

The following bills were discussed at the LPC last week.  Other bills of interest from that agenda are tracked and updated below.

SB 16-013 Concerning Statutory Changes Related to the Office of the Child Protection

The bill addresses several items in the statutes relating to the office of the child protection ombudsman (office), including:

Clarifying that the child protection ombudsman board’s (board) duties are advisory only;  Shifting the responsibility for accountability in policies and procedures from the board to the office; Clarifying that the ombudsman cannot be subpoenaed by independent parties to testify in personal custody proceedings; and Removing the statutory requirement for an audit of the office by the office of the state auditor but leaving it at the discretion of the legislative audit committee to request such an audit at a future date.

The CBA – through the Legislative Policy Committee is seeking to amend this bill to restore the ability to subpoena the Ombudsman.  This is an important part of the process, and a vital step to access to data that might be otherwise unavailable.

HB 16-1085 Concerning Simplifying the Process for Returning to a Proper Name after Decree of Dissolution

Under current law, a party to a divorce or legal separation may request in the petition that his or her prior name be restored as part of the decree of dissolution or legal separation. This process to restore a prior name does not involve a background check or publication of the name. However, if the party does not change his or her name at the time the decree of dissolution or legal separation is entered, he or she must follow the procedures for a name change under civil law that include a fingerprint-based background check and publication of the name.

Subject to certain conditions, the bill permits a party to a dissolution or legal separation action to request the restoration of his or her prior full name by filing a motion in the court that granted the divorce or legal separation. The ex-parte motion does not require notice to the other party to the divorce or legal separation. The bill includes the requirements for filing the motion and the conditions under which the court must grant the motion.
The bill also clarifies that the provisions of the adult name change statute do not apply to a party to a dissolution or legal separation action who requests restoration of a prior name pursuant to the new statute.

The CBA supports this legislation. We are working with the sponsor with respect to an amendment that would require notice be given to the other party in the dissolution.

Bills that the LPC is monitoring, watching or working on can be found at this link:

http://www.statebillinfo.com/sbi/index.cfm?fuseaction=Public.Dossier&id=21762&pk=996

@ the Capitol – These are the bills we are focused on:

HB 16-1051 Forms To Transfer Vehicle Ownership Upon Death

On and after the effective date of the bill, the department of revenue (department) shall make available a beneficiary designation form (form) that allows the owner or joint owners of a vehicle to arrange to transfer ownership of the vehicle to a named beneficiary upon the death of the owner or upon the death of all joint owners of the vehicle. Upon the death of the owner or of the last surviving joint owner, the beneficiary may present the form to the department and request a new title of ownership of the vehicle in the beneficiary’s name. The request must be accompanied by: Proof of the death of the vehicle’s owner or proof of the death of the last surviving joint owner of the vehicle; and the statutory fee for an application for a certificate of title.

Upon the presentation of a properly executed and notarized form and the accompanying documents and fee, the department, subject to any security interest, shall issue a new certificate of title to the beneficiary.

The transfer of ownership of a vehicle via a form is not considered testamentary and is not subject to the provisions of the “Colorado Probate Code”.
The CBA is working with the sponsor and other attorneys to ensure that the intent of the bill is harmonized with existing laws, and that it will work well once enacted into law.

HB 16-1077 Recreate Statutory Revisions Committee

The statutory revision committee created in 1977 and repealed in 1985, was a standing body tasked with making an ongoing investigation into statutory defects and anachronisms. The bill recreates the committee.  The recreated committee is comprised of 8 members, with the majority and minority party leaders of each chamber of the general assembly appointing 2 members of those bodies. The committee is staffed by the office of legislative legal services, and is charged with: Making an ongoing examination of the common law and statutes of the state and current judicial decisions for the purpose of discovering defects and anachronisms in the law and recommending needed reforms; Receiving, soliciting, and considering proposed changes in the law from legal organizations, public officials, lawyers, and the public generally as to defects and anachronisms in the law; Recommending legislation, from time to time, to effect such changes in the law as it deems necessary in order to modify or eliminate antiquated, redundant, or contradictory laws; and Reporting its findings and recommendations from time to time to the committee on legal services and annually to the general assembly.

The CBA is working with the Sponsors to offer amendments to shape the scope and membership of this committee.  We believe that the members and expertise of the Bar Association can provide value to the committee upon enactment, and into the future, should the bill pass.

HB 16-1145 Documentary Fee For Residential Real Property

Currently, a person filing a real property conveyance document with a county clerk and recorder must pay a documentary fee if the consideration for the conveyance is more than $500. The amount of the fee is based on the consideration paid, which is the total sales price to the purchaser, unless there is evidence of a separate consideration paid for personal property.

For purposes of the documentary fee, the bill changes the determination of the consideration paid for the grant or conveyance of residential real property as follows: Eliminates any reduction for a separate consideration paid for personal property from the total sales price; Generally requires the consideration amount listed on the grant or conveyance document to be used to determine the documentary fee; and If there is no consideration amount or the amount listed on the grant or conveyance document is $500 or less, and there is a related declaration filed, then the total sales price listed on the declaration is used to determine the documentary fee.  The bill also specifies that, unless indicated as commercial or industrial real property at the time of recording, a grant or conveyance is deemed to be of residential real property for the purpose of determining the documentary fee.

The CBA has significant concerns about this bill and the effects it will have upon real property transactions across the state.  We have been working with the stakeholders and sponsors to try and improve the bill, and to try and find a solution to the documentary fee challenges, but without harming other important aspects of property transactions.

SB 16-026 Personal Rights Of Protected Persons

A guardian or conservator shall not restrict a protected person’s right of communication, visitation, or interaction with other persons, including the right to receive visitors, telephone calls, or personal mail, unless such restrictions are authorized by a court order.  A court may issue an order restricting the communications, visitations, or interactions that a person may have with a protected person upon a showing of good cause by a guardian or conservator. In determining whether to issue such an order, the court shall consider certain factors.  An interested person, including the protected person, who reasonably believes that a guardian or conservator has violated a court order or abused his or her discretion in restricting a protected person’s right of communication, visitation, or interaction with other persons may move the court to: Require the guardian or conservator to grant a person access to the protected person; Restrict, or further restrict, a person’s access to the protected person; Modify the guardian or conservator’s duties; or Remove the guardian or conservator.
A guardian or conservator who knowingly isolates a protected person in violation of law or a court order is subject to removal. With certain exceptions, a guardian or conservator shall promptly notify a protected person’s closest known family members and any person designated by the protected person to be notified in the event that the protected person: Changes his or her residence; Resides at a location other than the protected person’s residence for more than 7 days; Is admitted to a medical facility for acute care or
emergency care; or Dies.

The CBA supports the intent and purpose of this legislation.  We offered testimony that outlined our belief that this was a significant bill, outlined some concerns we had for how the bill might not work well with existing statute, and reaffirmed our commitment to continuing our work with the sponsor.

New Bills of Interest

These are a few of the new bills.  They have been sent to our Sections for review and comment.  If you have any questions about these – or any other bills at the legislature, please drop me a line and I’m happy to help you however I can.

HB 16-1115 Prohibition of Sealing Municipal Domestic Violence Convictions

Under current law, conviction records related to municipal offenses are eligible for record sealing. The bill prohibits sealing a municipal assault or battery conviction or any other municipal conviction, if the conviction involves the underlying factual basis of domestic violence.

HB 16-1117 Electronic Recording for Certain Custodial Interrogation

The bill requires all law enforcement agencies to have audio-visual recording equipment available and policies and procedures in place for preserving custodial interrogations by January 1, 2017. A peace officer must record custodial interrogations occurring in a permanent detention facility if the peace officer is investigating a class 1 or 2 felony or a felony sexual assault. A peace officer does not have to record the interrogation if: the defendant requests that the interrogation not be recorded and the defendant’s request is preserved by electronic recording or in writing; The recording equipment fails; The recording equipment is unavailable, either through damage or extraordinary circumstances; Exigent circumstances related to public safety prevent recording; or The interrogation takes place outside of Colorado.

The court may admit evidence from a custodial interrogation that is not recorded. When offering evidence from an unrecorded interrogation, if the prosecution shows by a preponderance of the evidence that one of the exceptions apply or that the evidence is offered as rebuttal or impeachment evidence, the court may admit the evidence without a cautionary instruction. If the prosecution does not meet that burden, the court shall issue a cautionary instruction to the jury after admitting the evidence.

HB 16-1154 Employer Definition Clarify Franchisee Status

The bill clarifies that the definition of “employer” only includes a person that possesses authority to control an employee’s terms and conditions of employment and actually exercises that authority directly. The bill specifies that a franchisor is not considered an employer of a franchisee’s employees unless a court finds that a franchisor exercises a type or degree of control over the franchisee or the franchisee’s employees not customarily exercised by a franchisor for the purpose of protecting the franchisor’s trademarks and brand.

Five Cybersecurity Tech Tips: Worries to Give You the Willies

Editor’s Note: This post originally appeared on Attorney at Work on January 29, 2016. Reprinted with permission. See below for information about ordering Colorado CLE’s homestudy for our program, “Data Privacy & Information Security: Meeting the Challenges of this Complex and Evolving Area of the Law.”

By Sharon Nelson and John Simek

A keyboard with a red button - Privacy

A keyboard with a red button – Privacy

There are lots of cybersecurity worries to give you the willies in the wee hours of the morning, but we were asked to pick five. So here are some of the most common threats for lawyers to keep in mind.

1. Ransomware. We continue to see law firms struck by ransomware, which is a type of malware that encrypts your data (restricting your access to it) and then demands a ransom payment — usually in bitcoins — to get your data back. Training your employees not to click on suspicious attachments or links in email will help. They should stay away from suspicious sites as well since ransomware can be installed by just “driving by” an infected website.

Overwhelmingly, from a technological standpoint, you can defeat ransomware by having a backup that is immune to it. This can mean, particularly for solo lawyers, that you back up and then disconnect the backup from the network. For others, it means running an agent-based backup system rather than one that uses drive letters. Make sure your IT consultant has your backup engineered so that backups are protected — that way, even if you are attacked with ransomware, you can thumb your nose at the thief’s demands for money because you can restore your system from your backup. Of course, this means backups need to be made frequently to avoid any significant data loss.

2. Employees. Employees are by nature rogues. Every study made shows employees will ignore policies (assuming they exist) to do what they want to do. This often means people bring their own devices (BYOD) which may be infected when they connect to your network. They may also bring their own network (BYON) or bring their own cloud (BYOC). Certainly, your policies should disallow these practices (in our judgment) or, at least, manage the risks by controlling what it is done by implementing a combination of policies and technology.

Oh, and employees steal your data or leave it on flash drives or their home devices, too. This means you have “dark data” — data you don’t know about and over which you have no control. This means you may miss data required in discovery because you don’t know it exists. Your data may not be protected in compliance with federal or state laws and regulations. And you have no way to manage the data because you don’t know it is there. Once again, a combination of policies and technology should be in place to prevent these issues.

3. Targeted phishing. This is perhaps the greatest and most successful threat to law firm data. Someone has you in their sights — often they have done research on your law firm. They may know the cases you are involved in — and who your opponents are. They may know the managing partner’s nickname. Everything they know about you, they may use to get you to click on something (say, an email from an opponent referencing a specific case and saying “The next hearing in ___ case has been rescheduled as per the attachment). Many a lawyer has clicked on such attachments — or a link within an email.

The best solution to protect yourself from targeted phishing is training and more training — endlessly. One California firm was targeted by multiple phishing attacks but survived them because the lawyers and staff who received such emails questioned their authenticity.

Forget the loss of billable time. The loss of money, time and even clients due to a data breach can be far worse.

4. Interception of confidential information. Start with the proposition that everyone wants your data, including cybercriminals, hackers and nation states (including our own). Frankly, if they want your data and they have sophisticated tools, they will get it. So shame on you if you are not employing encryption (which is now cheap and easy) to protect confidential data transmitted and received via voice, text, and email. Encryption today is a law firm’s best friend. You may choose to use it always or in cases where it is warranted — but you surely should have the capability of encrypting.

5. Failure to use technology to enforce passwords policies. First, let us say that you should use multi-factor authentication where available and use it to protect sensitive data. But failing that, we recognize that passwords are still king in solo practices and small to midsize firms. Therefore, have your IT consultant assist you in setting up policies that can be enforced by technology, requiring that network passwords be changed every 30 days, not reused for an extended period of time — and mandating strong passwords (14 or more characters in length, utilizing upper- and lowercase letters, numbers and symbols). Passphrases are best. Iloveattorneyatwork2016! would do nicely.

There are many other “willies” out there, but address them one digestible chunk at a time!

Sharon D. Nelson (@SharonNelsonEsq) and John W. Simek (@SenseiEnt) are the President and Vice President of Sensei Enterprises, Inc., a digital forensics, legal technology and information security firm based in Fairfax, VA. Popular speakers and authors, they have written several books, including “The 2008-2015 Solo and Small Firm Legal Technology Guides” and “Encryption Made Simple for Lawyers.” Sharon blogs at Ride the Lightning and together they co-host of the Digital Detectives podcast.

 

CLE Homestudy: Data Privacy & Information Security — Meeting the Challenges of this Complex and Evolving Area of the Law

This CLE presentation took place Friday, January 22, 2016. Order the homestudy here: CDMP3 audioVideo OnDemand.

Qusair Mohamedbhai Recognized with 2015 Davis Award

Qusair Mohamedbhia Bio PicOn January 21, 2016, Davis Graham & Stubbs held its annual Richard Marden Davis Award Dinner. The guest of honor and recipient of the 2015 Davis Award was Qusair Mohamedbhai, founder of Rathod Mohamedbhai LLC, a civil rights and plaintiff’s employment firm in Denver. Mohamedbhai is a member of the Board of Directors for CLE in Colorado, is a frequent speaker at our programs, and writes for The Practitioner’s Guide to Colorado Employment Law. In his practice, he advocates for the rights of employees in the workplace and for the civil rights of all people against governmental and institutional abuses of power. In addition to his law practice, Mohamedbhai is an adjunct professor at the University of Denver Sturm College of Law, where he teaches constitutional litigation.

Mohamedbhai has received many other prestigious awards in his career. In addition to the 2015 Davis Award, Mohamedbhai received the 2015 Leonard Wein­glass in Defense of Civil Lib­er­ties Award from the American Association of Justice; received the 2013 and 2014 Case of the Year awards from the Colorado Trial Lawyers Association; and is a Legal Advisor to the Government of Mexico. He also received 5280 Magazine‘s “Top Lawyer” award for 2016 in the area of civil rights, Law Week Colorado‘s “Barrister’s Best” award in 2015 for Best Plaintiff’s Employment Lawyer, a “Super Lawyer” designation for 2014 and 2015 in the area of plaintiff’s employment law, and was named in Best Lawyers in the 2016 edition for employment law.

The Richard Marden Davis Award is given annually to a lawyer under 40 years old who combines excellence as a lawyer with civic, cultural, educational, and charitable leadership. The award was created in honor of Richard Marden Davis, a founding partner of Davis Graham & Stubbs, who was a skilled attorney who also made time for community service. The Davis family, Davis Graham & Stubbs, and the Denver Bar Foundation established the award in memory of Richard Marden Davis in 1993 to honor his belief that great lawyers should also be professional and community leaders. Past recipients of the Davis Award include Justice Monica Marquez of the Colorado Supreme Court, Justice Richard Gabriel of the Colorado Supreme Court, Judge Gilbert Roman of the Colorado Court of Appeals, and former governor Bill Ritter.

For more information about the award, click here. Congratulations, Qusair!

Colorado Court of Appeals: Workers’ Compensation Act Requires Statutory Interest on All Past Due Amounts

The Colorado Court of Appeals issued its opinion in Keel v. Industrial Claim Appeals Office on Thursday, January 14, 2016.

John Keel, a resident of Mississippi, was killed in a workplace accident in Colorado. The employer paid workers’ compensation death benefits in Mississippi from 2010 to 2013, and claimants (Keel’s surviving spouse and children) applied for Colorado benefits. In 2013, an ALJ determined that Colorado had jurisdiction and the employer was liable for death benefits under the Colorado Workers’ Compensation Act. The ALJ left for future determination the amount of the death benefit, whether the employer should pay past due death benefits, and whether interest was due on past due amounts.

The employer subsequently calculated Keel’s average weekly wage and subtracted offsets for Social Security death benefits and Mississippi workers’ compensation benefits, and issued a check to claimants for $66,822 for past due death benefits. The employer also stated it owed claimants an additional $2,040.32 in interest, having subtracted the Mississippi death benefits paid from the past due Colorado death benefits and using the statutory 8% interest rate. Claimants contended the employer significantly miscalculated the interest award.

An ALJ agreed with the employer’s reasoning and ordered it to pay the amount of interest it had calculated. A panel of the Industrial Claim Appeals Office calculated interest differently and ordered employer to pay interest on $41,841.08 instead. On remand, the ALJ adopted the ICAO’s reasoning and ordered the employer to pay interest on the ICAO’s calculated amount. Claimants again appealed and the ICAO affirmed the ALJ’s order.

Claimants then appealed to the Colorado Court of Appeals, which clarified that the issue on appeal was what the effect of death benefits paid in another state was on past due Colorado benefits. The court agreed with claimants’ contention that the ICAO erred in determining that C.R.S. § 8-42-114 did not apply, and found that by its plain and ordinary language claimants were entitled to 8% interest on the entire past due amount, $66,822.

The court analyzed the ICAO’s reasoning and respectfully disagreed with its conclusions. The court noted that it was not bound by the ICAO’s conclusions, which were primarily based on policy concerns. ICAO relied on the Full Faith and Credit Clause in determining that the Mississippi benefits were subsumed by the Colorado benefits, but the court of appeals found the Full Faith and Credit Clause inapplicable where, as here, the industrial commission of one state lacks authority to bar recovery in another state. Rather, if more than one state has jurisdiction over a workers’ compensation claim, the claimant can seek successive awards from those states. Since the ICAO cited no Colorado authority to support its rationale, and instead applied out-of-state case law, the court of appeals found the panel’s reasoning flawed. ICAO was also concerned that the claimants might receive a windfall or a double recovery. The court found that the claimants in this case did not receive a double recovery because the Colorado benefits were offset by the Mississippi benefits. The panel also expressed concern that a claimant might time its recovery in a way to maximize benefits, which the court of appeals thought was a concern better addressed to the legislature.

The ICAO’s order was reversed with directions to remand to the ALJ so that she may order the employer to pay statutory interest on the entire past due amount.

Colorado Court of Appeals: Teacher Attendance Records Not Personnel Records for CORA Purposes

The Colorado Court of Appeals issued its opinion in Jefferson County Education Association v. Jefferson County School District R-1 on Thursday, January 14, 2016.

This case discussed whether a record of a teacher’s sick leave is part of the teacher’s personnel file for purposes of the Colorado Open Records Act (CORA). In September 2014, some teachers at four Jefferson County high schools engaged in a “sick out” to protest specific school board proposals, resulting in the schools closing for the day. In February 2015, a Jefferson County resident requested the names of all teachers who were sick on that specific day pursuant to CORA. The school district decided to release the records, but the Jefferson County Education Association, a teachers union, did not want the district to release the records.

The union filed a C.R.C.P. 106(a)(2) motion in the trial court, requesting that the court order the district to deny the CORA request. The union asked for mandamus relief, arguing the records were part of the teachers’ personnel files. The trial court ultimately denied the union’s motion but granted a stay pending appeal. On appeal, the Colorado Court of Appeals focused on whether defendants had a clear duty to withhold the records from the CORA request. The court determined that, in fact, the defendants had a clear duty to disclose the records under CORA. The court drew a distinction between the types of record expressly exempted from CORA, such as personal demographic information, and the requested records in this case. Because the teachers were public employees whose absence affected their jobs, and because their absence was conspicuous to the public, the court of appeals found that the records of the teachers’ absences were not contained in the exemption to CORA. Further, because the teachers were paid with public funds, and the sick days were paid days, the court found that the district’s records of the sick days were public records for CORA purposes.

The trial court’s order was affirmed.

Tenth Circuit: Severance Payments to Terminated President Not Avoidable Under § 548

The Tenth Circuit Court of Appeals issued its opinion in In re Adam Aircraft Industries, Inc.: Weinman v. Walker on Thursday, October 15, 2015.

Joseph Walker was the president and a board member for Adam Aircraft Industries (AAI). On February 1, 2007, George “Rick” Adam, AAI’s board chair, informed Walker that the board had decided to replace him as president and requested his resignation in lieu of terminating his employment. AAI was engaged in debt financing negotiations with Morgan Stanley for an $80 million loan and did not want to imperil its negotiations with bad publicity from Walker’s termination. Walker returned to his office late that night to collect his belongings, and sent an email to the board chair and another board member outlining requests for his resignation. His replacement as president started working for AAI on February 2. Over the next two weeks, AAI and Walker negotiated the terms of his separation and eventually entered into Separation Agreement I and a Memorandum of Understanding (MOU) on February 13, 2007. On March 20, 2007, AAI refunded Walker’s security deposit for an airplane, plus interest, and on May 18, 2007, the parties entered into Separation Agreement II. AAI continued to make twice-monthly severance payments to Walker between February 2007 and February 2008.

On February 15, 2008, AAI filed a voluntary petition for bankruptcy, and the trustee, Weinman, sold substantially all of AAI’s assets for a gross purchase price of $10 million in April 2008. Walker filed a proof of claim in AAI’s bankruptcy case for $134,931.00, including $10,950.00 as a priority-employee claim based on wages, salaries, and commissions under the MOU and Separation Agreements. AAI filed a complaint in January 2010, seeking to avoid and recover transfers to Walker under the MOU and Separation Agreements. The bankruptcy court held a trial in February 2013 and entered its order in June 2013, ruling that Walker ceased to be a statutory insider on February 1, 2007, and did not meet criteria for a non-statutory insider; the transfers to Walker did not occur under an employment contract; and Walker gave reasonably equivalent value for the transfers. AAI appealed to the BAP, which affirmed the bankruptcy court, and again appealed to the Tenth Circuit.

AAI argued to the Tenth Circuit that its transfers to Walker were avoidable under 11 U.S.C. § 548(a)(1). The Circuit iterated five prongs that AAI must meet to prove its transfers were avoidable: (1) the transfers must have occurred within two years of the bankruptcy filing; (2) Walker must have been an insider either when the transfers were negotiated or when the money was paid; (3) the transfers must have been made under an employment contract; (4) AAI must have received less than equivalent value for the transfers; and (5) the transfers must have been made outside the ordinary course of business. The Tenth Circuit noted that the burden was on AAI to prove all five prongs, and failure to prove even one prong would mean AAI could not prevail. Since the parties did not dispute the first factor, the Tenth Circuit began its analysis by looking at whether Walker was an insider when the transfers were negotiated or the money was paid.

The bankruptcy court concluded that Walker’s insider status ceased as of February 1, 2007, and the Tenth Circuit agreed. AAI argued that because the MOU listed March 1, 2007, as Walker’s termination date, the first Separation Agreement and MOU were entered into while Walker retained insider status. The bankruptcy court found, however, that Walker did no further work for AAI after that date, he did not return to the AAI premises, and his replacement started on February 2. The Tenth Circuit found no clear error in the bankruptcy court’s determinations. The bankruptcy court also held Walker could not qualify as a non-statutory insider, which AAI argued was applicable because Walker proposed the initial terms of his separation, which AAI ultimately accepted. The Tenth Circuit found this was insufficient to satisfy AAI’s burden. The Tenth Circuit similarly rejected AAI’s contention that refusing to classify Walker as an insider would frustrate the purpose of BAPCPA, noting it could not imagine Congress intended the BAPCPA to allow businesses to negotiate separation terms with an employee, which the employee fulfilled, then avoid any reciprocal obligations to the employee.

AAI next argued its payments to Walker were recoverable under the “non-insider” portions of § 548. The statute allows avoidance of transfers if AAI received less than equivalent value at the date of each transfer and AAI was insolvent. The Tenth Circuit again noted that failure of one prong would negate the possibility of avoidance. The bankruptcy court had found that the antecedent debt created by the MOU and Separation Agreements for the severance package constituted “reasonably equivalent value” because Walker had agreed to resign instead of facing termination in order not to imperil the debt financing with Morgan Stanley and had not retained employment with competing companies. As for the airplane deposit and stock purchase refund, the Tenth Circuit found no error in the bankruptcy court’s determination that these transactions were not avoidable.

The Tenth Circuit affirmed the bankruptcy court.

Tenth Circuit: Independent Review Process Breaks Causal Chain Between Discrimination Allegations and Termination

The Tenth Circuit Court of Appeals issued its opinion in Thomas v. Berry Plastics Corp. on Friday, September 25, 2015.

Karry Thomas, who is African-American, worked for Berry Plastics Corp. in its Kansas facility from 2003 to 2010. Over the course of his employment, eight different Berry supervisors initiated at least 13 different disciplinary actions against him, ranging in severity from verbal coaching and written warning to suspensions and final warnings. In May 2009, Jason Morton became Thomas’s group leader. Morton had limited disciplinary authority and was unable to independently issue high levels of discipline such as suspensions or final warnings.

After conferring with his supervisor, Morton suspended Thomas in July 2010 for a print quality issue. Because of this suspension and a prior suspension issued by a different supervisor two months earlier, Watson, the printing manager who oversaw the entire Kansas operation, issued a Last Chance Agreement to Thomas, providing that he would be subject to disciplinary action for future attendance or rules violations. Morton was not involved in the decision to place Thomas on a Last Chance Agreement. A few weeks later, Morton gave Thomas a Final Warning, acting pursuant to direction from Watson and Human Resources, based on failure to pack product correctly on July 27. Thomas alleged that he did not fail to pack the product properly and stated he felt he was “getting discrimination because of race.” Morton investigated and determined the packing problem was not Thomas’s fault. He rescinded the Final Warning.

Later, Morton submitted a report to Watson that faulted Thomas for a print quality issue on September 10. Watson reviewed the incident and did not consult Morton before deciding to terminate Thomas. Before Human Resources could approve Watson’s termination decision, Morton issued a written warning to Thomas based on a different incident where he failed to complete paperwork. Shortly thereafter, Berry officially terminated Thomas’s employment.

Thomas appealed his termination through Berry’s Termination Review Process two days later, and two independent Berry managers affirmed Watson’s termination decision. Thomas thereafter filed suit for wrongful discharge, alleging he was terminated in retaliation for opposing race discrimination in violation of Title VII and 42 U.S.C. § 1981. Thomas invoked the cat’s paw theory of recovery, arguing it was Morton who possessed the retaliatory animus that infected Watson’s termination decision because of Thomas’s opposition to racial discrimination that he expressed at the Final Warning meeting with Morton. The district court ultimately granted summary judgment to Berry, and Thomas appealed.

On appeal, Thomas argued the district court erroneously granted summary judgment to Berry because he presented sufficient circumstantial evidence from which a reasonable jury could conclude the stated reason for his termination was pretextual. The Tenth Circuit disagreed, finding the district court correctly granted summary judgment for two reasons. The Tenth Circuit first applied the McDonnell Douglas framework to determine whether Thomas’s termination was pretextual and found Thomas failed to meet his burden to show pretext.

Thomas argued that a reasonable jury could infer Morton possessed retaliatory animus because of two pieces of circumstantial evidence. First, Thomas argued that Morton’s report regarding the September 10 print quality issue was dishonest because it failed to include that Thomas had properly inspected the equipment before going on break. However, Thomas did not argue that Berry would not hold a print technician responsible for errors that occurred while the print technician was on break, and the Tenth Circuit noted that record evidence suggested the opposite. The Tenth Circuit found that Morton’s omission on the September 10 report was inconsequential and did not reflect retaliatory animus. Next, Thomas argued that Morton’s report on the September 10 issue was inconsistent with his rescission of the July 27 incident. The Tenth Circuit again disagreed, noting that there is no inference of retaliatory animus in including more information in a rescission than in the original report, and also finding that both the rescission and the September 10 incident occurred after Thomas expressed concern about race discrimination, negating an inference that the timing of the September 10 report supported retaliation.

Although the Tenth Circuit found it could affirm on the lack of evidence alone, it also addressed causation, finding Thomas could not show that Morton’s retaliatory animus was a “but-for” cause of termination. Because Thomas’s termination was independently affirmed by Berry’s Termination Review Panel, the causal chain between Morton’s alleged animus and the retaliatory action was broken. The Tenth Circuit held that, even if it assumed retaliatory animus, Thomas could not show that the animus was a “but-for” cause of his termination.

The district court’s grant of summary judgment was affirmed.

Tenth Circuit: Garcetti and Lane Require Showing of Whether Speech Within Employee’s Official Duties

The Tenth Circuit Court of Appeals issued its opinion in Holub v. Gdowski on Thursday, September 24, 2015.

Gina Holub was employed as an internal auditor for the Adams 12 school district beginning in 2007, and she reported to the district’s Chief Financial Officer. In late 2011, the district hired Shelley Becker as the new CFO, who implemented measures to ensure the accuracy of the district’s budget. At Becker’s request, district employee Tracy Cantrell analyzed the district’s salary expenses. Cantrell determined that the budget included $12 million more in salary funding than required to pay all the full-time employees. Cantrell reported her findings to Becker, and when Becker failed to address the issue, she reported them to Holub. Holub agreed with Cantrell that the salary budget was inflated, but found that it included $17 million more than necessary, thereby affecting the budget’s required 10% reserves. Holub conveyed her concerns to district superintendent Chris Gdowski, who advised her to speak to Becker about the concerns. Holub expressed to Gdowski that speaking to Becker would create a conflict of interest, and Gdowski advised her to research to whom she should be reporting. Holub ultimately concluded she was required to share her concerns with senior management, including Becker, and the school board.

District employees held four separate meetings in July and August 2012 to address Holub’s concerns. Becker explained Holub had erred in her analysis by incorrectly assuming the salary budget only included base salaries of full-time employees. Rather, Becker informed Holub that the salary budget also included many other items, including overtime pay and coaching stipends. This information satisfied Gdowski that Holub’s concerns were unfounded. However, Holub was not satisfied, and a few days later she approached the board president, Mark Clark, and shared her concerns with him. Two days later, Gdowski introduced Holub to the board and indicated that, as internal auditor, she could be a resource for the board. Holub requested that Gdowski allow her to present her findings to the board, but Gdowski replied that he believed her concerns were unfounded and would not recommend that the board hear her concerns in a public meeting. Holub prepared and delivered to Gdowski a memorandum citing state law and accounting standards in which she asserted the district had acted illegally and unethically in concealing excess budget reserves. The district hired an independent expert, Vody Herrmann, to review the budget.

Before Herrmann completed her review, Holub again insisted to Gdowski that even if Herrmann disagreed with her, Holub had a responsibility to present her conclusions to the board. The district’s general counsel responded, advising Holub that the board was aware of her concerns, her responsibility was to raise concerns to management, and the board would determine whether further action was necessary after receiving the independent review. About three weeks later, Herrmann presented her findings to Holub, Gdowski, and Becker. Herrmann explicitly concluded Holub’s concerns were unfounded. Holub then met with two board members, Schaefer and Winsley, at Schaefer’s home office. Both board members then met with Gdowski to discuss Holub’s concerns and left the meeting satisfied that they were unfounded.

In early October 2012, Gdowski, Becker, and the district’s Chief Human Resources Officer met to discuss Holub’s unwillingness and apparent inability to move past her budget concerns. They decided to terminate Holub’s employment, and Becker and the CHRO met with Holub on October 19, 2012, to inform her of their decision, telling her that her inability to move past her discredited budget concerns meant she could no longer be an unbiased and productive employee. In February 2013, a local news station aired a story featuring an interview with Holub in which she accused the district of inflating its salary budget. Before the story aired, Gdowski posted a statement on the district’s website in which he informed the district’s staff, parents, and community that Holub’s concerns were unfounded, and also questioning Holub’s credibility.

Holub eventually filed this action against the school district, Gdowski, and Becker, alleging a 42 U.S.C. § 1983 claim against all defendants for terminating her employment in retaliation for protected First Amendment speech, a breach of contract claim against the district, intentional interference with contract claims against Gdowski and Becker, and a defamation claim against Gdowski. The district court granted summary judgment to defendants on all Holub’s claims, and she appealed.

The Tenth Circuit, applying de novo review, first analyzed Holub’s First Amendment claim using the Garcetti/Pickering test. The Tenth Circuit found Holub’s claims failed at the first prong of the test because she spoke pursuant to her official duties. Holub argued that the Supreme Court’s recent opinion in Lane v. Franks, 134 S. Ct. 2369 (2014) changed the Garcetti test, and that the district court should have focused on whether the speech was “ordinary” in the sense that it was customary or regular. The Tenth Circuit corrected Holub that Lane directed it to focus on whether the speech was within the employee’s usual duties, not whether the speech was frequent or customary. Even if it had accepted Holub’s argument, though, the Tenth Circuit found she still failed the first prong of the Garcetti test because she was acting in her official capacity when she spoke to the board members.

Next, the Tenth Circuit evaluated whether the district court correctly granted summary judgment on Holub’s state law breach of contract claims. Holub argued that the district’s stated reason for her termination, that she was unable to perform her official duties because she could not move past her unfounded budget concerns, was a ruse created by Gdowski and Becker to silence her complaints about the budget. Holub first argued the district lacked cause to terminate her contract. The district contended its reasons for terminating Holub were uncontroverted and provided more than sufficient cause for her termination. Holub failed to point to whether the district had cause to terminate her, instead arguing again that her budget calculations were correct. The district court noted that Holub supplied no indication that the district feigned engagement with her budget concerns just to fabricate an excuse to terminate her, and that indeed the district took several measures to address her concerns before considering termination. The Tenth Circuit found Holub failed to show any indicia of her alleged conspiracy theory.

Finally, the Tenth Circuit addressed the district court’s grant of summary judgment to Gdowski and Becker on Holub’s intentional interference with contract and wrongful discharge claims and to Gdowski on Holub’s defamation claim. The district court granted immunity to defendants, basing its decision on its conclusion that there was no evidence either Gdowski or Becker had acted willfully and wantonly in terminating Holub. The Tenth Circuit concluded that, even in the light most favorable to Holub, there was no evidence showing that Gdowski’s or Becker’s actions were unreasonable or reckless.

The Tenth Circuit affirmed the district court’s grant of summary judgment to defendants on all counts.

Colorado Court of Appeals: Christian-Themed Child Care Center Not Religious Organization for Purposes of CESA

The Colorado Court of Appeals issued its opinion in A Child’s Touch v. Industrial Claim Appeals Office on Thursday, December 31, 2015.

Child Care Center—Elementary School—Kindergarten—Unemployment Compensation Benefits—Religious Organization—Exemption.

A Child’s Touch is a state-licensed child care center providing infant and toddler day care, preschool, and kindergarten programs for children from 6 weeks to 6 years of age, and a summer camp for children ages 6 to 12 years. Christian-themed iconography, prayers, and devotions are incorporated into its daily curriculum. Claimant served as a maintenance worker at A Child’s Touch from approximately 1997 until his termination in September 2013, when his position was eliminated while he was on medical leave for double hip replacement surgery. A Child’s Touch denied claimant’s unemployment compensation claim, and the hearing officer upheld the denial. The Industrial Claim Appeals Office (Panel) set aside the hearing officer’s decision and awarded claimant benefits.

On appeal, A Child’s Touch argued that claimant was not in covered employment and that, as a religious organization, it was exempt from unemployment compensation taxes under the Colorado Employment Security Act (CESA). A Child’s Touch was not principally supported by a church or association of churches at the relevant period of time. Further, a child care facility that offers day care, preschool, and kindergarten, but does not teach any higher grades, is not an “elementary school” for purposes of a religious exemption from unemployment compensation taxes under CRS § 8-70-140(1)(a). Accordingly, the Panel correctly determined that A Child’s Touch is not entitled to a religious exemption from unemployment compensation taxes under CESA. Accordingly, the Panel’s order was affirmed, and the case was remanded to the Division of Unemployment Insurance to determine claimant’s entitlement to and eligibility for unemployment compensation benefits.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: State Personnel Board Lacked Authority to Review Non-Employee’s Claim

The Colorado Court of Appeals issued its opinion in Williams v. Department of Public Safety on Thursday, December 31, 2015.

Employee—Reinstatement—Colorado Anti-Discrimination Act—Sexual Orientation—Arbitrary and Capricious—Front Pay—Attorney Fees.

Plaintiff spent 12 years as a Colorado State Patrol (CSP) employee, climbing the ranks from trooper to captain. In 2010, he resigned from CSP to pursue his dream of becoming a helicopter pilot. He applied for reinstatement three months later. The new chief required plaintiff to complete a full background check and take a polygraph examination. During the pre-polygraph interview, plaintiff was asked questions eliciting information about his sexual orientation. Reinstatement was later denied on the basis that plaintiff failed the polygraph test. Plaintiff filed a complaint with the State Personnel Board (Board) alleging that CSP had acted arbitrarily or capriciously and that it had discriminated against him on the basis of sexual orientation in violation of the Colorado Anti-Discrimination Act (CADA). An administrative law judge (ALJ) found in favor of plaintiff.

On appeal, CSP contended that the Board did not have authority to review plaintiff’s claim that CSP acted arbitrarily or capriciously in declining to reinstate him. The statutory scheme unambiguously grants the State Personnel Director authority over claims of an arbitrary or capricious action. The Board has authority to review a “discriminatory or unfair employment practice[]” of nonemployee appointment decisions as defined in CADA, but it does not have authority to consider a nonemployee’s claim of arbitrary or capricious action. Accordingly, the claim was remanded to the Board for referral to the Director, who could consider whether the claim was tolled by lack of notice.

CSP contended that the record lacked sufficient evidence to support the ALJ’s conclusion that CSP discriminated against plaintiff based on his sexual orientation. However, the record supports the findings that CSP intentionally discriminated against plaintiff based on his sexual orientation. Supporting evidence included plaintiff’s exemplary record while previously employed, the treatment of plaintiff by CSP after it was discovered that he was gay, and the disparate treatment between plaintiff and other re-hires in similar situations.

CSP also argued, and the Court of Appeals agreed, that the former CRS § 24-34-405 did not authorize the Board to award front pay. Because the Board exceeded its jurisdiction in awarding this remedy, this portion of the Board’s order was reversed. On remand, the Board could consider ordering reinstatement.

Finally, CSP contended that the Board’s attorney fees award to plaintiff was unsupported by substantial evidence. However, the record supports the ALJ’s conclusions that CSP’s decision-making process lacked any reasonable basis and was made in bad faith. Therefore, the attorney fees award was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: District Court Within Discretion to Deny Late-Filed Motion to Amend Complaint

The Tenth Circuit Court of Appeals issued its opinion in Zisumbo v. Ogden Regional Medical Center on Friday, September 4, 2015.

Raymond Zisumbo worked at Ogden Regional Medical Center (ORMC) as a CT scan technician from March 2005 to October 2009. In 2009, Anthony Rodebush became Zisumbo’s supervisor. About the same time, Zisumbo applied for a promotion to a vacant CT Coordinator position. Rodebush expressed curiosity about why Zisumbo was eager for the promotion, and asked whether he’d ever been fired from other jobs. In response, Zisumbo produced letters from three previous employers to prove he was not fired, which Rodebush filed without reviewing. On September 15, 2009, at a staff pizza party, Rodebush remarked that Zisumbo wanted the CT Coordinator position and invited criticism from Zisumbo’s coworkers about why he was not suited for the job. Later that day, Zisumbo accused Rodebush of treating him differently because Zisumbo is Hispanic. Rodebush informed Zisumbo that he should discuss his concerns with the human resources manager, Chris Bissenden. Zisumbo interpreted this as a threat. Rather than discuss his concerns with Bissenden, Zisumbo filed a complaint with the Utah Antidiscrimination and Labor Division about a week after the pizza party alleging race discrimination, and also contacted ORMC’s ethics line with complaints of race discrimination and unprofessional behavior. ORMC’s record of the call noted only complaints of unprofessional behavior.

Judd Taylor, ORMC’s ethics compliance officer, investigated Zisumbo’s ethics line complaint and met privately with Rodebush during his investigation. He later met with Zisumbo and Rodebush, and the following day issued a written warning to Zisumbo for events that had occurred months earlier. Taylor and Rodebush also reviewed the letters Zisumbo had provided from his previous employers and immediately became suspicious that they were fabricated. On October 8, Rodebush and Taylor gave the letters to Bissenden, who began investigating their authenticity and discovered that at least one letter was falsified. Later that day, Taylor, Bissenden, and Rodebush met with Zisumbo and terminated his employment based on dishonesty because of the falsified letters.

On May 2, 2010, Zisumbo filed this action, alleging a Title VII hostile work environment claim. Six months later, ORMC permitted Zisumbo to amend his complaint to include Title VII claims based on race discrimination, hostile work environment, failure to promote, and discriminatory termination; a Title VII retaliation claim asserting that Zisumbo was fired for complaining about race discrimination; and a state law claim for breach of the duty of good faith and fair dealing. The district court entered a stipulated order setting deadlines for the litigation, including a September 2011 deadline for amending pleadings. However, in January 2012, Zisumbo sought to amend his complaint to add a claim of race discrimination under 42 U.S.C. § 1981. The district court denied his motion. Zisumbo then filed a new lawsuit in the same court alleging the same claims he unsuccessfully sought to add to his previous complaint and moved to consolidate the two actions. The district court dismissed his second complaint, and Zisumbo appealed to the Tenth Circuit. A prior panel of the Tenth Circuit ultimately rejected his “ill-conceived effort to end-run the district court’s decision.”

In the meantime, the district court granted summary judgment to ORMC on Zisumbo’s good faith and fair dealing, hostile work environment, and failure to promote claims. Zisumbo moved for reconsideration and alternatively sought to amend his complaint, which motions the district court denied. Zisumbo’s remaining claims were tried to a jury, which ultimately found against him on his discriminatory termination claim but for him on his retaliatory termination claim. Zisumbo sought back pay up to trial and reinstatement or front pay up to three years, but the district court foreshortened his award based on Zisumbo’s misdemeanor conviction for assaulting his daughter. Both parties sought attorney fees and ORMC moved for judgment as a matter of law on Zisumbo’s retaliatory termination claim. The district court denied ORMC’s motion and awarded attorney fees to Zisumbo, reducing his request based on his limited success in the litigation.

On appeal, the Tenth Circuit first addressed Zisumbo’s claim that the district court abused its discretion by not allowing him to amend his complaint after the September 2011 deadline. Although Zisumbo asserted his lawyer did not realize he could assert the § 1981 claim until January 2012, he possessed all the facts forming the basis of the claim by April 2011. The Tenth Circuit attributed the failure to timely amend his complaint to Zisumbo and found it well within the district court’s discretion to deny the proposed amendment. The Tenth Circuit also found no error in the district court’s grant of summary judgment to ORMC on Zisumbo’s good faith and fair dealing claim, finding that Zisumbo was an at will employee and had no contractual relationship with ORMC to necessitate a duty of good faith and fair dealing.

The Tenth Circuit next addressed ORMC’s cross-appeal regarding the district court’s denial of its renewed motion for judgment as a matter of law on the retaliatory termination claim. ORMC disputed that there was a causal nexus between the employee’s opposition to discrimination and the employer’s adverse action. The Tenth Circuit found ample record support for the nexus, including that Bissenden’s termination decision was made based on more than one of the falsified letters and that she acted together with Taylor and Rodebush in making the termination decision. ORMC also argued that no reasonable jury could have concluded that its decision to terminate Zisumbo was pretextual, but the Tenth Circuit again disagreed, finding that the timing of the termination supported an inference that he was terminated because he complained of discrimination.

Zisumbo also argued the district court erred in denying his request for a punitive damages instruction. The Tenth Circuit found Zisumbo’s proffered cases inapposite, and instead noted that he must show that ORMC, not just its employees, failed to make good faith efforts to comply with Title VII. Because ORMC had well established anti-discrimination policies, trained its managers on those policies, and consistently investigated reports of discrimination, the Tenth Circuit agreed with the district court that punitive damages were inappropriate.

Finally, the Tenth Circuit evaluated Zisumbo’s argument that he should have received more in back pay and front pay or reinstatement. The Tenth Circuit agreed with the district court that ORMC would have terminated Zisumbo based on the misdemeanor assault conviction and therefore it was appropriate to cut off the back pay award after the date Zisumbo pleaded guilty to the charge. The Tenth Circuit likewise approved of the method used by the district court to calculate the back pay award. The Tenth Circuit also approved of the district court’s reduction of the attorney fee award based on Zisumbo’s limited success in litigation.

The Tenth Circuit affirmed the district court.

Top Ten Employment Law Programs and Homestudies

As the end of the year draws nigh, we are reviewing the Top Ten Programs and Homestudies in several substantive areas of law. Previously, we covered ethics, family law, trust & estate law, real estate law, litigation, and business law. We continue our review with employment law. And now, without further ado, here are the Top Ten Employment Law Programs and Homestudies:

10. Lesbian/Gay/Bisexual/Transgender (LGBT) Law Institute — Dignity to All Persons. Although not strictly an employment law program, the LGBT Law Institute included topics of interest to employment law attorneys, including a session called “GLBTQ Employment Law Issues, FMLA, Sensitivity Training and Discrimination.” Eleven general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

9. Employment Law Fall Update 2013 — New Cases, New Legislation, and Tools Every Employment Lawyer Needs. Highly experienced employment lawyers discuss what’s new in the field in this informative program. Topics covered include stock options with mergers & acquisitions, arbitration, workplace violence, FLSA, retaliation, and more. Seven general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

8. Independent Contractor or Employee? Softrock‘s and Western Logistics‘ Effect. In 2014, the Colorado Supreme Court issued two important employment law decisions, ICAO v. Softrock and Western Logistics v. ICAO, reversing decades of case law regarding the test for whether a worker is an independent contractor or employee. This program discusses the two decisions and their impact on employment law in Colorado. One general credit; available as MP3 audio download and Video OnDemand.

7. Discipline, Documentation, and Discharge of Problem Employees. Performance reviews strike dread into the hearts of employers and employees alike, but the consequences of poor disciplinary practices can be disastrous. This program provides practical tools for navigating the disciplinary process, including coaching, warnings, performance improvement plans, and last chance agreements. Eight general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

6. Non-Compete Agreements, Confidentiality Agreements, and Other Restrictions on Employee Competition. Many employers of entry level workers force their employees to sign non-compete agreements as a condition of employment. Is this legal? In this program, learn about the proper use of non-compete agreements and the law of restrictive employment covenants, as well as the necessity of and limitations on confidentiality agreements, statutory protection of trade secrets, common law rights of employers and employees, and litigation risks and realities. Four general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

5. Workplace Discrimination. Many employment law cases have an element of discrimination, and the important topic is the center of this program. Learn about the intersection of religious freedom and anti-discrimination laws, what really happens during mediations, bias and discrimination within the legal profession, Colorado’s Anti-Discrimination Act, employment testing and the ADA, and much more. Seven general credits, including one ethics credit; available as CD homestudy, MP3 audio download, and Video OnDemand.

4. Employment Law 2014. Whether you are interested in state or federal issues, the plaintiff or defense perspective, or whether you are new to employment law or a seasoned professional – the 2014 Employment Law Conference is a must-have. This two-day program offers a litigation track and a counseling track, with sessions on associational discrimination, workplace privacy, premises liability, corporate compliance, and more. Nineteen general credits, including 1.2 ethics credits; available as CD homestudy and MP3 audio download.

3. Whistleblower Litigation, Discrimination, and the First Amendment — Employment Law Fall Update 2014. The hottest topics in employment law are featured in this program, including the Federal Whistleblower Protection Act, free speech, non-compete agreements, ADEA update, labor law for employment lawyers, and more. Eight general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

2. Intellectual Property in the Workplace — Employment Law Fall Update 2015. Regardless of a company’s business model, its IP assets are important in sustaining growth and fostering robust employment. But overly controlling a company’s ownership of the intellectual product of its employees can stifle the creativity of the workforce. This program discusses protection of employer and employee rights in intellectual property, workplace privacy concerns, defending employees against claims of trade secret theft, human capital as intellectual property, and much more. Six general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

1. 2015 Employment Law. This annual conference discusses everything employment law, regardless of whether you represent plaintiffs or the defense, are a solo or member of a large firm or in-house counsel, or are new to employment law or are a seasoned professional. Topics covered in the 2015 program include the cat’s paw theory, the Affordable Care Act, transgender issues in employment law, common investigation mistakes and how to avoid them, an update from the Division of Labor, and much more. Eighteen general credits, including 1.2 ethics credits; available as CD homestudy and MP3 audio download. NOTE: This program is repeated annually. Click here for the 2014 program and click here for the 2013 program.