May 26, 2016

Colorado Court of Appeals: Hearing Board Erroneously Judged Conduct Subjectively, Not Objectively

The Colorado Court of Appeals issued its opinion in City & County of Denver v. Gutierrez on Thursday, May 19, 2016.

Silver Gutierrez is a captain with the Denver Sheriff’s Department (DSD) and is on the board of the Denver Sheriff’s Foundation. Cheryl Arabalo is also a DSD captain and board member for the Foundation. On August 26, 2010, Arabalo went to Gutierrez’s office. Gutierrez was on the phone but he gestured for Arabalo to lift up her shirt and expose her breasts and then to sit on his lap. Two months later, Arabalo filed a complaint with the Colorado Civil Rights Division, alleging sexual harassment.

A hearing officer with the DSD Internal Affairs Bureau found that this type of behavior was prevalent among board members, who had a “locker room” culture and frequently engaged in sexualized behavior with each other. The DSD suspended Gutierrez for 75 days for violations of several Departmental Orders (DOs), but a hearing board reduced the suspension to 30 days. The hearing board decided that while Gutierrez’s conduct violated some of the DOs, it did not satisfy the criteria for the most egregious conduct.

The City appealed the hearing board’s decision to the district court pursuant to C.R.C.P. 106(a)(4). The district court determined the board had abused its discretion by applying a subjective standard rather than an objective standard to Gutierrez’s conduct. The district court remanded to the hearing board to reconsider, and Gutierrez appealed.

On appeal, the court of appeals agreed with the district court that, although the hearing board stated it was using objective criteria, it actually evaluated Gutierrez’s conduct using subjective standards. The hearing board considered the Foundation board’s “locker room” atmosphere and sexualized behavior in finding that Gutierrez’s conduct was not that bad. The court of appeals found this was in error, and the hearing board should have viewed the conduct as it would appear to an outside observer.

The court of appeals affirmed the district court and remanded to the hearing board for determination of appropriate disciplinary action.

Bills Regarding Residential Drug Treatment for Probationers, Enhancing Cybersecurity, and More Signed

On Friday, May 20, 2016, Governor Hickenlooper signed seven bills into law. To date, he has signed 199 bills this legislative session. Some of the bills signed Friday include a bill to extend the transitional jobs program, a bill to allow persons on probation for any offense to engage in residential drug treatment, and a bill to increase state cybersecurity. The bills signed Friday are summarized here.

  • HB 16-1097 – Concerning Regulation of Medicaid Nonemergency Transportation Providers, and, in Connection Therewith, Making and Reducing an Appropriation, by Reps. Don Coram & Dominick Moreno and Sen. Ray Scott. The bill allows providers of non-emergency transportation to Medicaid clients to operate under a limited regulation permit from the Public Utilities Commission.
  • HB 16-1197 – Concerning a Requirement that State Agencies Implement a Program to Streamline the Granting of Occupational Credentials to Veterans Based on Military Training, and, in Connection Therewith, Making an Appropriation, by Reps. Terri Carver & Jovan Melton and Sens. Nancy Todd & Larry Crowder. The bill requires each state agency that certifies, licenses, or registers an occupation to publish a summary of pathways available to military veterans by evaluating the extent to which military training meets state requirements, identifying reciprocity mechanisms in other states, and determining if occupational examinations are available that authorize a veteran to practice; consult with community colleges and other post-secondary education institutions about courses or programs that fill the gap between military and civilian occupational training, and refresher courses for lapsed occupational training; and consider adopting a national credentialing examination.
  • HB 16-1267 – Concerning the “Colorado Veterans’ Service-to-Career Pilot Program”, and, in Connection Therewith, Creating a Grant Program Through the Department of Labor and Employment to Aid Work Force Centers in Supporting Veterans and their Spouses Seeking New Employment and Careers, and Making an Appropriation, by Reps. Pete Lee & Rhonda Fields and Sens. Laura Woods & Morgan Carroll. The bill creates the Colorado Veterans’ Service-to-Career Pilot Program. Through CDLE and in partnership with nonprofit agencies, workforce centers throughout the state may apply for grants to develop and expand career services for veterans, spouses, and eligible participants. Eligible participants include a veteran’s dependent child under age 27 and a veteran’s caregiver over age 18.
  • HB 16-1278 – Concerning Residential Drug Treatment for Persons on Probation, by Rep. Pete Lee and Sen. John Cooke. The bill allows the court to require a defendant to participate in drug treatment when sentenced to probation for any offense, rather than just drug offenses.
  • HB 16-1288 – Concerning the Creation of an Industry Infrastructure Grant Program Within the State Work Force Development Council, by Reps. Tracy Kraft-Tharp & Cole Wist and Sens. Jack Tate & Michael Merrifield. The bill creates the Industry Infrastructure Grant Program within the Colorado Workforce Development Council (CWDC). The purpose of the program is for the CWDC to partner with eligible nonprofit entities to develop industry competency standards to support businesses in their implementation of work site training programs.
  • HB 16-1290 – Concerning an Extension of the Transitional Jobs Program, and, in Connection Therewith, Making an Appropriation, by Reps. Daneya Esgar & Tracy Kraft-Tharp and Sens. Andy Kerr & Owen Hill. The bill extends the sunset of the transitional jobs program until June 30, 2022, and requires the Department of Human Services to stop offering transitional jobs after December 31, 2021.
  • HB 16-1453 – Concerning Measures to Enhance Cybersecurity, and, in Connection Therewith, Making an Appropriation, by Rep. Millie Hamner and Sen. Kent Lambert. The bill creates the Colorado Cybersecurity Council in the Department of Public Safety, which is to operate as a steering group to develop cybersecurity policy guidance for the Governor; develop comprehensive goals, requirements, initiatives, and milestones; and to coordinate with the General Assembly and the Judicial Department regarding cybersecurity.

For a complete list of Governor Hickenlooper’s 2016 legislative decisions, click here.

Bills Concerning Depositions for At-Risk Persons, Immunity for Reported Overdoses, and More Signed

On Thursday, May 19, 2016, Governor Hickenlooper signed six bills into law. To date, he has signed 192 bills this legislative session. The bills signed Thursday include a bill to allow depositions of at-risk persons in criminal trials in which the at risk persons may not be available to testify, a bill repealing certain mandatory terms of incarceration, and more. The bills signed Thursday are summarized here.

  • HB 16-1027 – Concerning Depositions in Criminal Cases in Which an At-Risk Person May Not Be Available for Trial, by Rep. Jessie Danielson and Sens. Nancy Todd & Jerry Sonnenberg. The bill expands and streamlines the allowable use of recorded depositions for at-risk elders. Under the bill, upon receipt of a motion the court must schedule a recorded deposition within 14 days without further findings if the victim is an at-risk elder, defined as any person 70 years of age or older; however, the bill allows the defense to challenge the motion for recorded depositions of other at-risk adults.
  • HB 16-1227 – Concerning Exemptions from Child Support Enforcement Requirements as a Condition of Receipt of Child Care Assistance Under the Colorado Child Care Assistance Program, and, in Connection Therewith, Making an Appropriation, by Reps. Daniel Kagan & Brian DelGrosso and Sens. Owen Hill & Larry Crowder. The bill specifies that a teen parent is not required to submit an application for child support establishment as a condition of receiving child care assistance. However, the county can require the parent to submit an application for child support establishment in order to receive child care assistance once they no longer qualify as a teen parent.
  • HB 16-1302 – Concerning the Alignment of the Colorado Statutes with the Federal “Workforce Innovation and Opportunity Act” Through the “Colorado Career Advancement Act,” by Reps. Crisanta Duran & Brian DelGrosso and Sen. Linda Newell. The bill changes the title of the “Colorado Workforce Investment Act” to the “Colorado Career Advancement Act.” It also clarifies the roles of specific entities in workforce development programs and removes statutory requirements made inapplicable by the federal act.
  • HB 16-1390 – Concerning Immunity for Certain Persons who Are Involved with a Reported Overdose Event, by Rep. Dominick Moreno and Sen. Lucia Guzman. The bill provides immunity from arrest for underage persons reporting alcohol or marijuana overdoses and extends immunity from arrest and prosecution to the underage person requiring medical assistance.
  • SB 16-072 – Concerning an Increase in the Maximum Total Amount of Annual Lease Payments Authorized for Lease-Purchase Agreements Entered into Under the “Building Excellent Schools Today Act”, and, in Connection Therewith, Making an Appropriation, by Sen. Andy Kerr and Reps. Alec Garnett & Jim Wilson. Currently under the Building Excellent Schools Today Act (BEST), the state may enter into lease-purchase agreements for public school facility capital construction projects, subject to the limitation that the maximum total annual amount of lease payments payable under these agreements does not exceed $80 million in a fiscal year. This bill establishes incremental caps on these lease payments.
  • SB 16-102 Concerning the Elimination of Mandatory Sentences to Incarceration for Certain Crimes, and, in Connection Therewith, Making and Reducing an Appropriation, by Sen. Andy Kerr and Rep. Dominick Moreno. The bill  removes the mandatory term of incarceration that must accompany convictions of certain types of second degree assault or violations of bail bond conditions.

For a complete list of Governor Hickenlooper’s 2016 legislative decisions, click here.

Tenth Circuit: District Court Legally Erred in Evaluating Whether Workplace Harassers had Hostile Animus

The Tenth Circuit Court of Appeals issued its opinion in Lounds v. Lincare, Inc. on Tuesday, December 22, 2015.

Shawron Lounds was hired at Lincare’s Wichita facility to be a customer service representative in September 2011. She was the only African-American employee at the office, and was frequently subjected to offensive and racially-motivated comments. When company vice president Greg McCarthy visited the Wichita facility in January 2012, Ms. Lounds reported her concerns to him about the offensive and racially-charged statements. Mr. McCarthy asked Paula Adams, Lincare’s director of employee relations, to follow up with Ms. Lounds.

Later that day, Ms. Adams called the district manager to discuss Ms. Lounds’ concerns, and the district manager held a conference call with Ms. Lounds and her supervisor. Ms. Lounds relayed to the district manager the offensive statements and actions of her coworkers. Ms. Adams and the district manager mutually agreed that the employees who had participated in the offensive behavior would be disciplined, and issued final written warnings to the involved employees.

Ms. Lounds submitted a document to Lincare’s human resources department in February 2012, in which she commented that she felt “bombarded with racial slurs and comments” and detailing several specific instances. She further alleged that “nothing had changed” since her January 2012 meeting with Mr. McCarthy. However, in a conference call with Ms. Adams in March 2012, Ms. Adams inferred that the discipline of the three employees had been effective because Ms. Lounds did not allege any new instances of harassment.

In April 2012, Ms. Lounds filed a complaint with the Kansas Human Rights Commission (KHRC). That same month, she was disciplined for “excessive absenteeism,” specifically 16 unscheduled absences since September 2011. She was also reminded of the company’s policy against reporting absences via text message. Ms. Lounds responded by sending Lincare’s human resources department a “letter of rebuttal” detailing how the discipline was retaliatory. Between April and September 2012, Ms. Lounds continued to miss work, citing the racially charged environment as her reason for absenteeism. She was discharged in September 2012 for “ongoing, excessive absenteeism.” In October 2012, Ms. Lounds sent another letter to HR, alleging she had been the target of racial discrimination and retaliation and citing specific examples. She timely filed charges of discrimination with the EEOC and received a right to sue.

In March 2013, Ms. Lounds filed suit in district court, alleging unlawful discrimination and retaliation. In her deposition testimony in August 2013, Ms. Lounds cited several specific examples of discriminatory conduct and retaliation. After close of discovery and briefing, the district court granted summary judgment to Lincare, finding that no reasonable jury could have found the race discrimination sufficiently severe or pervasive to support a hostile work environment claim, and further finding that Ms. Lounds’ allegations of retaliation were either not materially adverse or not protected activity. Ms. Lounds timely appealed.

The Tenth Circuit evaluated whether there was sufficient evidence to support a hostile work environment claim under 42 U.S.C. § 1981 and found that there was. The Tenth Circuit found that Ms. Lounds had carried her burden to create a jury question regarding whether the harassment was sufficiently pervasive or severe. The Tenth Circuit noted that to support a claim, it is not enough that a plaintiff considers the work environment hostile; it must also be of the character that a reasonable person would view it hostile. Further, the plaintiff must show more than a few isolated incidents of hostility; the plaintiff must show a “steady barrage of opprobrious racial comments.” The Tenth Circuit evaluated the district court’s assertion that none of the offensive remarks were directed at Ms. Lounds and they were not made with scorn or animosity. Ms. Lounds argued the district court incorrectly applied summary judgment standards by failing to construe evidence in the light most favorable to her and by resolving factual disputes in Lincare’s favor. The Tenth Circuit agreed.

The Tenth Circuit found the district court committed reversible error by resolving the merits of the hostile work environment claim in Lincare’s favor at summary judgment. By evaluating whether the subjective intent of the specific remarks was benign, the district court legally erred because it should have instead focused on whether a reasonable jury could find the subjective and objective effect of the conduct was to pollute the work environment with harassing conduct. The Tenth Circuit specifically found that the repeated references to “nigga” and “lynching” were enough to racially charge the work environment. The Tenth Circuit reiterated that the district court committed legal error by focusing on whether the alleged harassers intended to cause harm, rather than whether a reasonable jury could find that the subjective or objective effect of the conduct was to pollute the environment with harassing conduct.

The Tenth Circuit affirmed the district court’s grant of summary judgment against Ms. Lounds on her Title VII retaliation claim, discerning no reversible error. The Tenth Circuit evaluated the parties’ arguments regarding pretext and discipline, and found that the district court correctly determined that Ms. Lounds’ theory that Lincare’s discipline and termination were pretextual was insufficient as a matter of law.

The Tenth Circuit reversed the district court’s grant of summary judgment on the discrimination claims and affirmed summary judgment on the retaliation claims, and remanded for further proceedings.

Colorado Court of Appeals: Permanent Injunction Barring Trespass Not Preempted by NLRA

The Colorado Court of Appeals issued its opinion in Wal-Mart Stores, Inc. v. United Food & Commercial Workers International Union on Thursday, May 5, 2016.

Unions—Trespass—Permanent Injunction—National Labor Relations Act—Preemption—Subject Matter Jurisdiction.

United Food and Commercial Workers International Union (UFCW) and Organization United for Respect at Walmart (collectively, unions) engaged in demonstrations at Walmart stores at several locations in Colorado. In response, Walmart mailed a letter to UFCW’s general counsel asking him to direct the unions to immediately cease protesting on Walmart’s property. When the activities continued, Walmart filed an unfair labor practice charge (labor charge) with the National Labor Relations Board (Board), claiming that the unions violated the National Labor Relations Act (NLRA). This charge was later dismissed by Walmart. However, Walmart then filed a complaint for injunctive and declaratory relief from trespass in district court, requesting a permanent injunction enjoining the unions from engaging in certain types of activities on Walmart’s property. The unions filed a motion to dismiss under C.R.C.P. 12(b)(1), claiming the NLRA preemption deprived the district court of subject matter jurisdiction. The court denied the motion and then granted Walmart’s motion for summary judgment.

On appeal, the unions argued that the district court erred in denying their motion to dismiss because Walmart’s lawsuit is preempted by the NLRA. The federal issue in Walmart’s labor charge is unrelated to the trespass issue in Walmart’s state claim, and therefore the controversies are not identical. The NLRA does not arguably prohibit, and thus does not preempt, Walmart’s state claim to enjoin the unions from trespassing on its premises.

The unions also argued that, assuming the district court has subject matter jurisdiction over their activities, it applied the incorrect legal standard and erred by granting Walmart’s motion for summary judgment and permanently enjoining the unions from trespassing at Walmart-owned stores that are subject to Walmart’s nonexclusive easements over the property. The unions contended that because the properties contain nonexclusive easements, Walmart does not have exclusive possession of them and the district court should have required Walmart to show that the unions’ activity unreasonably interfered with Walmart’s use and enjoyment of the property. The unions do not dispute that Walmart possesses and has title to the property in question. Thus, to sustain its trespass claim, Walmart only had to prove that the unions entered its property without its permission. Accordingly, the court did not abuse its discretion by issuing the injunction.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

HB 16-1438: Requiring Reasonable Employment Accommodations for Pregnancy-Related Conditions

On April 12, 2016, Rep. Faith Winter and Sen. Beth Martinez Humenik introduced HB 16-1438Concerning the Provision of Reasonable Accommodations by an Employer for Persons who have a Condition Related to Pregnancy. The bill was assigned to the House Health, Insurance, & Environment Committee.

Under this bill, an employer shall: (1) provide reasonable accommodations to perform the essential functions of the job to an applicant or employee for health conditions related to pregnancy; (2) not take adverse action against an employee who requests or uses a reasonable accommodation; (3) not deny employment opportunities based on the need to make reasonable accommodations; (4) not require an applicant or employee affected by pregnancy to accept an accommodation that the applicant or employee chooses not to accept; (5) not require an employee to take leave if the employer can provide another reasonable accommodation for the employee’s pregnancy; (6) engage in an interactive process with the employee to determine effective reasonable accommodations; and (7) post written notice in a conspicuous place accessible to employees of the right to be free from said discriminatory or unfair employment practices. It is a discriminatory or unfair employment practice if an employer fails to comply with the provisions of this bill.

The bill defines “reasonable accommodations” by providing a non-exhaustive list of possible changes to an employee’s daily activity, but then states that an employer is not required to do any of the following: (1) hire new employees; (2) discharge an employee, transfer a senior employee, or promote an unqualified employee; (3) create a new position; or (4) provide paid leave beyond that which is provided to similarly situated employees.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

HB 16-1388: Prohibiting Certain Employers from Inquiring Into Applicants’ Criminal Records

On March 16, 2016, Rep. Beth McCann introduced HB 16-1388Concerning the Timing of Inquiring into a Job Applicant’s Criminal History. The bill was assigned to the House Judiciary Committee, where it passed unamended and referred to Appropriations.

This bill prohibits any employer who has four or more people regularly engaged in the same business or employment from engaging in certain practices related to the screening of potential employees’ criminal records. For the purposes of the bill, “employer” does not include state, local, or quasi-governmental entities.

An employer shall not:

  1. State in an advertisement or application for employment that a person with a criminal history may not apply; or
  2. Inquire into or require disclosure of an applicant’s criminal history until the applicant has been determined qualified for the position and notified that the applicant has been selected for an interview, or if there is not an interview, until after a conditional offer of employment is made.

An employer is exempt from these restrictions if:

  1. A law prohibits the employment of a person with a specific criminal conviction;
  2. A law requires the consideration of an applicant’s criminal history;
  3. The position is designed for participation in a government program to encourage the employment of people with criminal histories; or
  4. The position requires a fidelity bond, and a specific criminal conviction would disqualify the applicant from obtaining the bond.

An employer who violates the bill is liable for one of the following penalties: (1) first offense: warning and an order requiring compliance within 30 days; (2) second offense: civil fine not exceeding $500 (for employers with more than 14 employees, not exceeding $1,000); or (3) third or subsequent offense: civil fine not exceeding $1,000 (for employers with more than 14 employees, not exceeding $2,500)

The bill does not create or authorize a private cause of action by a person aggrieved by a violation of its provisions, although an aggrieved individual may file a complaint with the Department of Labor and Employment.

Employers shall retain employment applications for nine months after submission to the employer, and employers shall allow the Department of Labor and Employment to inspect said employment applications.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

Trait-Based Protection Under the ADAAA

roberto-corrada-fullBy Roberto Corrada, Professor
University of Denver Sturm College of Law

Professor Susan Carle of American University Law School thinks the “regarded as” prong of the ADA may be severely underutilized by plaintiffs seeking to challenge their termination. According to Carle, who delivered a lunch keynote address at the 2016 Colorado Bar CLE annual employment law conference, the ADAAA of 2009 amended the ADA in a way that greatly increased the potential effectiveness of the “regarded as” prong. The ADAAA, first, freed the “regarded as” prong of the requirement that the disability the employer regards an employee as having must significantly impair a major life activity. Employers now only have to “regard” an employee as having some impairment for the employee to be protected by the ADA. To balance this out, Carle emphasizes, the ADAAA did limit the “regarded as” prong a bit. So, the prong does not protect transitory or minor disabilities and the “regarded as” prong does not support requests for accommodation.

Professor Carle explains that it’s fairly clear now what is protected, but there’s a bit of ambiguity around how far the new protection goes. With respect to what is clear, if an employee has an injured back, but has a medical release to go back to work (can perform the essential functions of the job) and the employer says no, the employee is likely protected. Also, if an employee has an anxiety disorder and the employer finds the employee annoying (even though the employee can perform essential functions) and fires the employee, the employee is likely protected. Professor Carle, though, is interested in knowing whether the ADA might extend far enough to protect certain traits. For example, what if an employee has no diagnosed disability or has a disability that has not been disclosed to the employer? If the employer then looks at an employee “trait” that the employee possesses and “regards it as” a disability or impairment, is the employee protected by the ADA? For example, an employee suffers from depression and as a result fails to participate in workplace social gatherings or attends, but just sits in the corner. Is the employee protected from termination by the ADA “regarded as” prong?

Professor Carle believes that the ADA “regarded as” prong “can be of special help to persons with ambiguous or hidden impairments because it may very often be the very perception of ‘something weird/different/not right’ about the person that causes a negative reaction or discrimination rather than any limitation in relevant job-related abilities.” The big question is whether an employer who regards an employee as having a “social disorder” based on a trait is prohibited from acting on that trait in disciplining or terminating the employee? Does the trait have to be an effect of an actual disability or impairment? Professor Carle will attempt to make her case in an upcoming issue of the University of California Davis Law Review. Professor Carle’s argument does have some hope for unleashing the progressive potential of the ADA. After all, a foundational policy of the ADA is to have employers focus on the essential functions of the job in making employment decisions rather than indulging personal biases.

 

CLE Homestudy — Employment Law Conference 2016: Proactively Prepare for What Lies Ahead

This CLE presentation took place Wednesday, April 20, 2016, and Thursday, April 21, 2016. Order the homestudy here: CDMP3 audio.

 

Roberto Corrada, Mulligan Burleson Chair in Modern Learning and Professor at the University of Denver Sturm College of Law, has devoted his scholarly attention to three primary areas: the rights of ethnic and sexual minorities; the public/private distinction in labor and employment law; and the scholarship of teaching and learning. A distinguished teacher, Corrada has been recognized for his innovative work in the classroom. He has received several awards, and was named a national Carnegie Scholar in 2000. He is also extensively involved in service work with local and national institutions, including chairing the board of the ACLU of Colorado in 1998 and helping form the Denver Urban Debate League, serving now on the Board of Directors.

Tenth Circuit: H-2A Sheepherders Must Primarily Tend Sheep in Pastures

The Tenth Circuit Court of Appeals issued its opinion in Saenz Mencia v. Allred on Monday, December 14, 2015.

German Wilmer Saenz Mencia, a citizen of Peru, came to Utah to work on the Allreds’ sheep ranch under an H-2A sheepherder visa, and was paid $750 per month plus room and board, the minimum for sheepherders. He brought claims in district court, arguing that the work he performed did not qualify as sheepherding and instead he was entitled to the hourly wage for ranch hands. Mr. Saenz asserted claims in contract and quantum meruit for the lost wages and FLSA minimum wage claims against the Allreds. The district court rejected Mr. Saenz’s claims, denied his summary judgment motion, and granted summary judgment to the Allreds. Mr. Saenz appealed.

The Tenth Circuit first analyzed the H-2A definition of sheepherding and the FLSA definition of range production of livestock. The Tenth Circuit determined that to fit the definitions, Mr. Saenz must have spent over half of his time on the range tending to the sheep and must have extremely variable hours, described as “the constant surveillance of livestock that graze and reproduce on range lands.” The Tenth Circuit found that there was no plausible reading of the definitions that would render Mr. Saenz a sheepherder. Mr. Saenz worked in the vicinity of ranch headquarters where the Allreds could see what he was doing and ask him to help with odd jobs. Mr. Saenz did work with sheep, but they did not graze; they were fed hay. The Tenth Circuit concluded that Mr. Saenz did not work on the range as contemplated by the definitions. The Tenth Circuit found further evidence in the fact that the Allreds and Mr. Saenz were easily able to approximate his hours, and that most of his jobs were incidental to sheepherding. The Tenth Circuit found that Mr. Saenz was a ranch hand, not a sheepherder.

The Tenth Circuit next examined the district court’s finding that Mr. Saenz’s claims were estopped. The district court found that because Mr. Saenz never complained of being underpayed while employed by the Allreds, he was estopped from bringing claims in court. The Tenth Circuit disagreed. The Allreds were employers of more than a dozen H-2A sheepherders, and had obtained the H-2A visas for their employers by vouching for the type of work they would do. The Tenth Circuit concluded the Allreds had both actual and constructive knowledge of the nature and location of Mr. Saenz’s work and rejected their equitable estoppel claim. The Tenth Circuit held that the Allreds had easy access to lawyers and were in the business of importing laborers, and they were therefore not entitled to equitable estoppel under Utah law.

The Tenth Circuit addressed each of the Allreds’ six alternative grounds on which they asked the court to affirm and found none convincing. The Tenth Circuit reversed the district court’s grant of summary judgment to the Allreds and directed it to grant summary judgment to Mr. Saenz. The Tenth Circuit remanded for a calculation of damages and any other proceedings necessary.

Bills Implementing “SAFE Act,” Allowing Issuance of Summonses in Lieu of Warrants, and More Signed

On Thursday, April 21, and Friday, April 22, 2016, Governor Hickenlooper signed more bills into law. He signed 19 bills on Thursday and five bills on Friday. To date, the governor has signed 141 bills this legislative session. Some of the bills signed Thursday and Friday include a bill to limit the imposition of conditions by federal entities on Colorado water rights, changing the statutory purpose of parole in order to facilitate integration into society for parolees, limiting laws governing security interests in business entities, and more. The bills signed Thursday and Friday are summarized here.

Thursday, April 21, 2016

  • HB 16-1035 – Concerning the Scope of Statutes Making the Issuance of Securities by a Public Utility Conditional on Approval by the Colorado Public Utilities Commission, and, in Connection Therewith, Clarifying that the Approval Requirement Applies Only to Electric and Gas Utilities, by Rep. Timothy Leonard and Sen. Ray Scott. The bill clarifies that only public electric and gas utilities are required to apply to the Public Utilities Commission for approval to issue or assume securities.
  • HB 16-1060 – Concerning Roadside Memorials for Fallen State Patrol Officers, by Rep. Max Tyler and Sen. Randy Baumgardner. The bill requires CDOT to erect and maintain a permanent roadside memorial for every Colorado State Patrol officer who has perished on the highway in the line of duty.
  • HB 16-1093 – Concerning the Use of the National Change of Address Database to Maintain Voter Registration Records, and, in Connection Therewith, Clarifying Terminology and Consolidating Procedures for County Clerks and Recorders to Follow when it Appears that an Elector has Moved Within the State, by Reps. Kim Ransom & Su Ryden and Sen. Jack Tate. The bill changes the process that must be followed by county clerks to confirm a voter address if the monthly search determines that a voter may have moved.
  • HB 16-1104 – Concerning the Issuance of a Summons in Lieu of a Warrant for Certain Non-Violent Offenders, by Rep. Kit Roupe and Sen. John Cooke. The bill allows law enforcement officers to issue a summons in lieu of a warrant if the officer believes there is a reasonable likelihood the defendant will appear, the local district attorney approves and has developed criteria for the procedure, the defendant has had no felony arrests in the past five years, there is no allegation that the defendant used a deadly weapon, and there are no outstanding warrants for the defendant’s arrest.
  • HB 16-1109 – Concerning that the Basic Tenets of Colorado Water Law Place on the Ability of Certain Federal Agencies to Impose Conditions on a Water Right Owner in Exchange for Permission to use Federal Land, by Reps. KC Becker & Jon Becker and Sens. Jerry Sonnenberg & Kerry Donovan. The bill states that Colorado water is a transferable property right and that the federal government must comply with state law, through the water court process, to acquire water rights.
  • HB 16-1141 – Concerning the Protection of Colorado Residents from the Hazards Associated with Naturally Occurring Radioactive Materials in Buildings, and in Connection Therewith, Making an Appropriation, by Reps. KC Becker & Don Coram and Sens. Cheri Jahn & Ellen Roberts. The bill requires the Colorado Department of Public Health and Environment to establish a radon education and awareness program to provide information and education statewide to citizens, businesses, and others in need of information, and requires that, by January 1, 2017, the CDPHE stablish a radon mitigation assistance program to provide financial assistance to low-income individuals for radon mitigation services.
  • HB 16-1153 – Concerning the Annual Date by which the General Assembly Receives a Report Regarding Outcomes of Decisions Made by the State Board of Parole, by Rep. Jovan Melton and Sen. John Cooke. The bill extends the deadline by which reports on parole outcomes made by the State Board of Parole and the Division of Criminal Justice are required from November 1 to March 31.
  • HB 16-1173 – Concerning the Continuation of the Regulation of Vessels by the Department of Natural Resources, by Rep. Diane Mitsch Bush and Sen. Ray Scott. The bill indefinitely removes the sunset of the Vessel Registration Program conducted by the Department of Regulatory Agencies to continue the registration and regulation of vessels program by Colorado Parks and Wildlife in the Department of Natural Resources.
  • HB 16-1198 – Concerning Computer Science Courses Fulfilling Certain Graduation Requirements, by Reps. Dan Pabon & Jim Wilson and Sens. Jack Tate & Andy Kerr. The bill encourages school districts to treat computer science and coding classes as mathematics or science courses and count completion of such computer-related courses toward the fulfillment of any mathematics or science graduation requirements.
  • HB 16-1215 – Concerning Changing the Statutory Purposes of Parole to Successfully Reintegrate Parolees into Society by Providing Enhanced Supportive Services, by Reps. Beth McCann & Daniel Kagan and Sen. Lucia Guzman. The bill redefines the purpose of parole to enhance public safety by reducing recidivism, select and prepare individuals who will be transitioned into the community, set individualized conditions of parole, and achieve a successful discharge from parole.
  • HB 16-1230 – Concerning the Inclusion of a County’s Financial Information in the State’s Financial Information Database, which is known as the Transparency Online Project, by Rep. Timothy Dore and Sen. John Cooke. The bill requires counties to provide the state Chief Information Officer with a copy of the county’s adopted budget no later than 30 days after the fiscal year begins, starting January 1, 2018.
  • HB 16-1255 – Concerning Additional Methods to Manage Forests to Secure Favorable Conditions for Water Supply, by Reps. Don Coram & Ed Vigil and Sen. Randy Baumgardner. The bill directs the Colorado state forest service to conduct demonstration pilot projects to implement forest management treatments that improve forest health and resilience, supply forest products to Colorado businesses, and target a Colorado watershed.
  • HB 16-1258 – Concerning the Posting by Court Clerks of Process When a Respondent is Served by Publication, by Rep. Jovan Melton and Sen. Kevin Lundberg. Current law mandates that clerks of court post the process for notice of a divorce proceeding on a bulletin board in their office when one party cannot be reached. This bill adds the option that clerks can post the process on a bulletin board or the website of the district court in which the case was filed.
  • HB 16-1259 – Concerning Local District Junior Colleges, and, in Connection Therewith, Changing the Term Local District Junior College to Local District College, by Reps. Diane Mitsch Bush & Jim Wilson and Sens. John Cooke & Kerry Donovan. The bill changes all statutory references to “local junior college” or “junior college” to “local district college” and changes requirements regarding number of board members, actions taken without regular meetings, and annexation.
  • HB 16-1270 – Concerning the Limitation of Laws Governing Security Interests to an Owner’s Interest in a Business Entity, by Rep. Pete Lee and Sens. Mark Scheffel & Rollie Heath. The bill allows small businesses to control their ownership under the Colorado Corporation and Associations Act and the Uniform Commercial Code.
  • HB 16-1271 – Concerning the Ability of a Limited Winery that has a Winery Direct Shipper’s Permit to Deliver Vinous Liquors of its Own Manufacture Directly to a Personal Consumer Without the Use of a Common Carrier, by Reps. Jonathan Singer & Dan Nordberg and Sens. Cheri Jahn & Kevin Lundberg. Under current law, a limited winery licensee with a winery direct shipper’s permit may only use a common carrier to deliver the wine it manufactures to personal consumers within Colorado. This bill allows a limited winery licensee to deliver the wine it manufactures directly to personal consumers without the use of a common carrier, as long as the licensee also has a winery direct shipper’s permit and follows the requirements of the permit.
  • HB 16-1306 – Concerning Revision of the State Statutes Governing Mortgage Loan Originators to Conform More Closely to Applicable Federal Law, and, in Connection Therewith, Amending, Relocating, and Repealing Provisions in Accordance with the Federal “Secure and Fair Enforcement for Mortgage Licensing Act Of 2008,” by Rep. Angela Williams and Sen. Chris Holbert. The bill  amends, relocates, and repeals provisions of Colorado’s mortgage loan originator licensing statutes that conflict with or have been rendered unnecessary by recent changes to federal law, or no longer reflect current national industry standards.
  • HB 16-1316 – Concerning Procedures for Changing Venue for Proceedings Relating to a Child Placed in the Legal Custody of a County Department of Social or Human Services, by Rep. Paul Rosenthal and Sen. John Cooke. The bill amends the Colorado Children’s Code to state that a child who is placed in the legal custody of a county department shall be deemed, for the entire period of the placement, to reside in the county in which the child’s legal parent or guardian resides or is located. This applies even if the child physically resides in an out-of-home placement located in another county.
  • HB 16-1327 – Concerning the Colorado Dental Board’s Authority to Promulgate Rules Implementing Financial Responsibility Requirements for Dental Care Providers, by Rep. Joann Ginal and Sen. Kevin Grantham. The bill allows the State Dental Board to establish lesser financial responsibility requirements for professional liability insurance for dental hygienists that meet certain criteria.

Friday, April 22, 2016

  • HB 16-1070 – Concerning a Signature Verification Requirement for Municipal Mail Ballot Elections, and, in Connection Therewith, Making an Appropriation, by Rep. Patrick Neville and Sen. Tim Neville. The bill requires an election judge to compare the signature on each ballot return envelope with the signature of the eligible elector stored in the statewide voter registration system for every municipal mail ballot election.
  • HB 16-1155 – Concerning Authorization for a County to Designate a Four-Lane Controlled-Access Highway that is Located in the County as a Primary Road of the County Highway System, and, in Connection Therewith, Specifying the Jurisdiction, Control, and Duties of the County and of a Municipality Through which the Highway Passes with Respect to Such a Highway, by Reps. Lori Saine & Diane Mitsch Bush and Sen. Jerry Sonnenberg. The bill allows a county with a population of 250,000 or more to designate a four-lane, controlled-access county highway in an unincorporated county area that intersects with an interstate highway or a U.S. numbered highway as a primary road of the county if the construction begins in 2016.
  • HB 16-1323 – Concerning Changing the Name of the Division of Labor to the Division of Labor and Statistics, by Rep. Tracy Kraft-Tharp and Sen. John Cooke. The bill changes the name of the Division of Labor and Employment within the Colorado Department of Labor and Employment (CDLE) to the Division of Labor Standards and Statistics.
  • HB 16-1350 – Concerning the Department of Higher Education’s Authority to Make Transfers Relating to a Governing Board’s Fee-For-Service Contracts for Specialty Education, by Rep. Dave Young and Sen. Kevin Grantham. Under current law, the Department of Higher Education may transfer up to ten percent of the annual total governing board appropriation for an institution of higher education between that governing board’s appropriation for college opportunity fund (COF) stipends, and that governing board’s fee-for-service (FFS) contracts for higher education services and programs. The bill expands the department’s authority to transfer between the COF and FFS appropriations for specialty education programs.
  • HB 16-1352 – Concerning the Appropriation of Moneys from the State Museum Cash Fund for the Benefit of Facilities Owned and Operated by the State Historical Society, and, in Connection Therewith, Making an Appropriation, by Rep. Millie Hamner and Sen. Kevin Grantham. The bill allows moneys in the fund to also be appropriated for exhibit planning, development, and build-out at other State Historical Society facilities, and, for FY 2016-17, appropriates $2 million from the fund for those purposes. The State Historical Society has four years to spend the appropriation.

For a complete list of Governor Hickenlooper’s 2016 legislative decisions, click here.

SB 16-134: Allowing Qualified Military Veterans Access to Professional Licenses

On February 18, 2016, Sens. Rollie Heath & Leroy Garcia and Reps. Jessie Danielson & Daniel Kagan introduced SB 16-134Concerning Professional Licensing for Military Veterans in Certain Professions. The bill was assigned to the Senate Business, Labor, & Technology Committee, where it was amended. The bill passed through the Senate with amendments on Second Reading, and was introduced into the House Business Affairs & Labor Committee. The bill was unamended in the House committee and referred to the House Committee of the Whole for Second Reading.

First, this bill requires the Department of Revenue to consider the training, education, or experience obtained by an applicant as a member of the U.S. armed forces, reserves, or National Guard, and the Department of Revenue may credit the training, education, or experience toward the qualifications necessary to receive a license, certification, or registration.

Second, this bill requires the Division of Veteran Affairs within the Department of Military and Veterans Affairs to make reasonable efforts to notify discharged members of the armed services who are located in – or who intend to relocate to – Colorado of the requirements enacted by this bill and enforced by the Department of Revenue, as well as the requirements in C.R.S. § 24-34-102(8) and (8.5), enforced by the Division of Professions and Occupations of the Department of Regulatory Agencies.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

HB 16-1301: Providing Tax Credit to Colorado Businesses that Offer High-Quality Apprenticeships for Top Jobs

On February 26, 2016, Rep. Alec Garnett and Sen. Mark Scheffel introduced HB 16-1301Concerning an Income Tax Credit for Colorado Businesses that Offer High-quality Apprenticeships for Top Jobs. The bill was assigned to the House Finance Committee, where it was amended and referred to Appropriations. The bill passed out of the Appropriations Committee with amendments and was again amended on Second Reading in the House.

This bill provides an income tax credit to qualified Colorado businesses that meet certain criteria and retain pre-apprentices or apprentices. The tax credit is administered by the Colorado Department of Labor and Employment (referred to herein as “Department”). The intended purpose of the tax credit is to offset a small portion of the cost to the business to create experiential learning opportunities for the state’s youth.

On or before August 15, 2016, and on or before July 1, 2017-2019, the Work Force Development Council shall publish on its website, and send to the Department, a list of top jobs with the greatest regional and state demand.

To be eligible for the tax credit, a taxpayer must be a (1) business in the state that offers top jobs, and a business that: (2) offers a pre-apprenticeship or apprenticeship program; (3) is aligned with a postsecondary education or employment opportunity; (4) employs a sufficient number of program case managers; (5) provides students with training or course work that is designed to prepare the students for the pre-apprenticeship or apprenticeship; (6) implements adequate safety and supervisory safeguards for the participating students; and (7) retains at least one pre-apprentice or apprentice.

To be eligible for the tax credit, a construction industry taxpayer must be a (1) construction industry business in the state that offers top jobs, and the construction business must have at least one of the following employees during the year for which the tax credit is sought: (2-A) an employee who graduated from a construction industry pre-apprenticeship program and who has been accepted into a apprenticeship program; or (2-B) an employee who is a registered apprentice enrolled in a apprenticeship program.

The Department shall promulgate rules for the issuance of the credit certificates. The Department shall review each tax credit application. If the taxpayer receives conditional approval, the taxpayer shall submit to the Department a request for the issuance of a credit certificate. If the Department determines the taxpayer is qualified, the Department, in its discretion, may issue a tax credit certificate for each pre-apprentice (not to exceed $2,500 per pre-apprentice) or apprentice (not to exceed $5,000 per apprentice) retained, totally up to one million dollars per income tax year. The credit certificate must be submitted by the qualified taxpayer to the Department of Revenue. The Department shall disclose in an annual report to the General Assembly and Department of Revenue the certificates issued in the previous year.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.