July 25, 2016

Colorado Court of Appeals: Hearing Officer Erred in Ascribing Fault to Claimant for her Mental Health Disorders

The Colorado Court of Appeals issued its opinion in Mesa County Public Library District v. Industrial Claim Appeals Office on Thursday, June 16, 2016.

Unemployment Compensation Benefits—Mental Health Disorder.

Gomez worked for the Mesa County Public Library District (Library) for almost 25 years. In 2013, she began having performance issues and was placed on two successive performance improvement plans (PIPs). In September 2014, she was placed on a third PIP and told to produce a satisfactory organizational capacity report by October 7 or face additional disciplinary action, including discharge. She called in sick on that date, and again on October 9, and did not return to work again. On October 14, she submitted a doctor’s note advising that she was suffering from acute stress disorder and major depressive disorder. She was granted a request to remain off work for four to six weeks. The Library director terminated her on October 20, 2014 for failing to provide the organizational capacity report.

The hearing officer in her unemployment compensation benefits case determined that Gomez had become mentally unable to perform her job duties but found her “at fault” for becoming mentally unable to complete the report, and under C.R.S. § 8-73-108(5)(e)(XX), disqualified her from receiving benefits. On review, the Industrial Claim Appeals Office (Panel) adopted the hearing officer’s evidentiary findings but rejected as a matter of law the conclusion that Gomez was disqualified from receiving benefits because she was at fault for her own diagnosed mental disorders. It awarded her benefits under C.R.S. § 8-73-108(4)(j).

On appeal, the Library argued that the Panel substituted its findings of fact for those of the hearing officer. The Court of Appeals found that the Panel adopted the hearing officer’s findings of fact. The Court also rejected the Library’s contention that the evidence demonstrated that Gomez’s mental health disorder did not affect her ability to complete the report. The Court agreed with the Panel that the hearing officer erred in determining that Gomez was at fault for her nonvolitional conduct.

The Panel’s order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Civil Union Marriage Bill, Workers’ Compensation Sample Form Requirement Bill, and More Signed

On Wednesday, June 8, 2016, Governor Hickenlooper signed 24 bills into law. To date, he has signed 275  bills this legislative session. Some of the bills signed Wednesday include a bill enhancing measures against charitable fraud, a bill regulating the practice of massage therapy to deter human trafficking, a bill setting forth requirements for marijuana cultivation in indoor spaces, a bill clarifying the marriage process for individuals in a civil union, and more. The bills signed Wednesday are summarized here.

  • HB 16-1047 – Concerning the Adoption of an Interstate Compact to Allow Physicians to Become Licensed in Multiple States through an Expedited Licensure Process, and, in Connection Therewith, Making an Appropriation, by Reps. Perry Buck & Faith Winter and Sens. Linda Newell & Ellen Roberts. The bill enacts the Interstate Medical Licensure Compact (compact) and authorizes the Governor to enter into the compact on behalf of Colorado. Under the compact, physicians licensed in a member state may obtain an expedited license in other member states, allowing them to practice in Colorado or in another member state.
  • HB 16-1088 – Concerning the Authorization for a Fire Protection District to Impose an Impact Fee on New Development, and, in Connection Therewith, Enacting the “Public Safety Fairness Act,” by Rep. Timothy Dore and Sen. Ellen Roberts. The bill authorizes a local government to impose an impact fee on new construction to fund fire and emergency services provided by that local government.
  • HB 16-1114 – Concerning the Repeal of Duplicate Reporting Requirements, by Rep. Brian DelGrosso and Sen. Jessie Ulibarri. The bill bill eliminates current employment verification standards that require each employer in Colorado to attest within 20 days that it has verified the legal work status of each employee, has not altered or falsified employee identification documents, and has not knowingly hired an unauthorized alien; require each employer in Colorado to submit documentation to the director of the Division of Labor in the Colorado Department of Labor and Employment (CDLE) that demonstrates that the employer is in compliance with federal employment verification requirements; and fine an employer for failing to provide required documentation or for providing fraudulent documentation.
  • HB 16-1129 – Concerning Measures for Enhanced Enforcement Against Acts of Charitable Fraud, by Reps. Polly Lawrence & Beth McCann and Sens. Larry Crowder & Rollie Heath. The bill strengthens measures against charitable fraud in several ways. It allows the state to bring civil actions against individuals charged with charitable fraud, with a penalty of up to $10,000 for each violation with a cap of $3 million for related series of violations. In determining a civil penalty, the court must adjust the limitations cap for inflation.
  • HB 16-1171 – Concerning Continuation of the Colorado Special Education Fiscal Advisory Committee, by Reps. Brittany Petterson & Rhonda Fields and Sen. Laura Woods. The bill indefinitely extends the sunset of the Colorado Special Education Fiscal Advisory Committee.
  • HB 16-1194 – Concerning a Temporary Income Tax Deduction for a Portion of Lease Payments Received by a Qualified Taxpayer for Leasing the Taxpayer’s Agricultural Asset to an Eligible Beginning Farmer or Rancher, by Reps. Diane Mitsch Bush & Jon Becker and Sen. Jerry Sonnenberg. The bill creates an income tax deduction for taxpayers that lease an agricultural asset, defined as land, crops, livestock, livestock facilities, farm equipment, grain storage, or irrigation equipment, to a beginning farmer or rancher satisfying certain qualifications.
  • HB 16-1282 – Concerning the Alignment of Regular Biennial School Elections with Disclosure Requirements Governing Other Election Races Under the “Fair Campaign Practices Act”, and, in Connection Therewith, Making an Appropriation, by Reps. KC Becker & Brittany Pettersen and Sens. Nancy Todd & Jack Tate. The bill applies the disclosure requirements in the Fair Campaign Practices Act to regular biennial school board elections.
  • HB 16-1320 – Concerning the Regulation of Massage Therapy to Modify Practices that are Linked to Criminal Behavior, by Reps. Mike Foote & Terri Carver and Sen. John Cooke. The bill removes specific exemptions from the practice of massage therapy and clarifies that other health care professionals may practice massage therapy as long as the therapy is within the limits of their license. The bill also specifies that massage therapists must be at least 18 years of age.
  • HB 16-1335 – Concerning the Unlawful Sale of Certain Publicly Provided Services, by Reps. Dan Pabon & Jovan Melton and Sen. Pat Steadman. The bill prohibits a person from reserving or obtaining a cost-free government service or appointment to sell or intend to sell.
  • HB 16-1377 – Concerning the Creation of a Task Force on the Collection and Security of Digital Images of Evidence of Child Abuse or Neglect, by Rep. Dianne Primavera and Sen. Kent Lambert. The bill creates a task force in the Department of Human Services to examine the collection and security of digital images of evidence of child abuse and neglect. The task force is required to examine current practices by county departments of human services, best practices and safeguards concerning digital images, the role of law enforcement and medical professionals, and to make recommendations.
  • HB 16-1429 – Concerning Alternative Education Campuses, and, in Connection Therewith, Making an Appropriation, by Reps. Brittany Pettersen & Jim Wilson and Sen. Andy Kerr. The bill modifies the criteria for designation as an alternative education campus by lowering the threshold for AEC designation from 95 percent high-risk students to 90 percent high-risk students; substituting four absences in any one month, or ten absences in any given year, for the current high-risk criteria of failing to remain continuously enrolled and regularly attending school in the previous semester; expanding high-risk criteria to include students who are wards of the courts, are in foster care, or have experienced the loss of a parent or sibling; and redefining the meaning of behavioral health issues related to high-risk students in AECs.
  • SB 16-035 – Concerning the Public School Fund, and, in Connection Therewith, Creating a Public School Fund Investment Board to Direct the State Treasurer on the Investment of the Fund and Changing the Distribution of the Interest or Income Earned on the Investment of the Moneys in the Fund, by Sens. Michael Johnston & Jerry Sonnenberg and Reps. Bob Rankin & Dave Young. The bill creates the Public School Fund Investment Board to oversee investment of the Public School Fund and broadens the allowable investment options for the fund. The board is charged with establishing policies concerning allowable investments of the fund and the distribution of income and interest earnings.
  • SB 16-069 – Concerning Measures to Provide Community-Based Out-of-Hospital Medical Services, and, in Connection Therewith, Making an Appropriation, by Sen. Leroy Garcia and Rep. Dan Pabon. The bill requires the Colorado Department of Public Health and Environment to establish rules governing the scope of practice of community integrated health care service, including the issuance of an endorsement in community integrated health care service to emergency medical service providers. In addition, agencies managing and offering community integrated health care services must be licensed by CDPHE beginning December 31, 2018.
  • SB 16-073 – Concerning the Authority of the State Auditor to Audit the Use of State Gaming Tax Revenues Transferred from the State Historical Fund Directly to the Gaming Cities for Historic Preservation, by Sen. Kevin Grantham and Rep. Polly Lawrence. The bill requires the State Auditor to conduct postaudits and performance audits of the limited gaming funds that are transferred to the State Historical Fund for the preservation and restoration of the gaming cities of Central, Black Hawk, and Cripple Creek.
  • SB 16-080 – Concerning Secured Marijuana Cultivation Requirements, by Sen. Linda Newell and Reps. Cole Wist & Dan Pabon. The bill removes an exemption from certain offenses relating to marijuana and marijuana concentrate provided for lawfully cultivated medical marijuana. Under the bill, residential growers of medical marijuana will be subject to the same requirements as other growers to lawfully cultivate in an enclosed and locked space and to restrict the access of persons under the age of 21, unless that person is at least 18 years old and holds a valid medical marijuana card or is a registered primary caregiver. The bill also clarifies that if a person is lawfully cultivating medical marijuana, that fact alone is not sufficient to require a referral to child protection services.
  • SB 16-120 – Concerning Providing an Explanation of Benefits to Medicaid Recipients for Purposes of Discovering Potential Medicaid Fraud, and, in Connection Therewith, Making an Appropriation, by Sen. Ellen Roberts and Rep. Don Coram. The bill requires the Department of Health Care Policy and Financing to provide explanation of benefits (EOB) statements to Medicaid clients beginning July 1, 2017. The EOB statements must be distributed at least bimonthly and the department may determine the most cost effective means of sending out the statements, including email or web-based distribution, with mailed copies sent by request only. The bill specifies the information to be included in the EOB statements, including the name of the client receiving services, the name of the service providers, a description of the service provided, the billing code for the service, and the date of the service.
  • SB 16-124 – Concerning Sales and Use Tax Treatment for Equipment Used for Processing Recovered Materials, by Sen. Kevin Grantham and Reps. Kevin Priola & KC Becker. The bill expands the current sales and use tax exemption for machinery and machine tools used in manufacturing to include machinery purchased by businesses listed in the Department of Public Heath and Environment’s inventory of recyclers and solid waste processors.
  • SB 16-150 – Concerning Marriages by Individuals who are Parties to a Civil Union, and, in Connection Therewith, Prohibiting Marriages in Circumstances in which one of the Parties is Already in a Civil Union with Another Individual, Addressing the Legal Effect of Parties to a Civil Union Marrying Each Other, Clarifying the Dissolution Process when Parties to a Civil Union Marry, and Amending the Bigamy Statute to Include Parties to a Civil Union, by Sen. Pat Steadman and Rep. Daneya Esgar. The bill amends state law concerning civil unions and marriage to do the following: allow persons in a valid current civil union to marry each other without having to first dissolve the civil union; specify that a civil union and marriage are merged when two people in a civil union subsequently enter into marriage and that the civil union terminates on the date of the new marriage; specify that the Uniform Dissolution of Marriage Act applies to marriages that result from a merger with a civil union; specify that time spent in a civil union prior to it being converted to marriage is included when determining the duration of such a marriage during dissolution proceedings; apply state bigamy laws to persons currently in a civil union who enter into marriage with someone other than the civil union partner or persons who enter into another civil union; and more.
  • SB 16-161 – Concerning the Regulation of Athletic Trainers by the Division of Professions and Occupations in the Department of Regulatory Agencies, and, in Connection Therewith, Making an Appropriation, by Sen. Larry Crowder and Rep. Dianne Primavera. The bill requires athletic trainers to be registered with the Division of Professions and Occupations in the Department of Regulatory Agencies, and reinstates the Athletic Trainer Practice Act as it existed prior to its 2015 repeal.
  • SB 16-182 – Concerning Technical Revisions to the Statutes Governing the Division of Vocational Rehabilitation, by Sen. Kent Lambert and Rep. Dave Young. The bill makes technical changes to align state statute with federal law and rules for vocational rehabilitation programs and updates program terminology.
  • SB 16-192 – Concerning a Needs Assessment Tool for Persons Eligible for Long-Term Services and Supports, Including Individuals with Intellectual and Developmental Disabilities, and, in Connection Therewith, Making an Appropriation, by Sen. Kent Lambert and Rep. Dave Young. The bill requires the Department of Health Care Policy and Financing to select a new needs assessment tool for persons receiving long-term services and supports, including services for persons with intellectual and developmental disabilities, by July 1, 2018.
  • SB 16-198 – Concerning the Standards Applicable to Documents Used by Workers’ Compensation Insurance Carriers in Colorado, and, in Connection Therewith, Requiring Advisory Organizations and Ratings Organizations to File Sample Forms of Policies, Riders, Letters, Notices, and Other Documents to the Commissioner of Insurance, by Sen. Chris Holbert and Rep. Tracy Kraft-Tharp. The bill adds advisory organizations and rating organizations to the list of entities required to comply with current law regarding submission of policy forms, which may include any endorsement, rider, letter, notice, or other document affecting an insurance policy or contract. These materials are to be submitted to the Commissioner of Insurance in the Division of Insurance within the Department of Regulatory Agencies via an annual report due by July 1 of each year.
  • SB 16-200 – Concerning the Creation of a Position in the Office of the Governor that Coordinates the Permitting of Water Projects, by Sen. Jerry Sonnenberg and Rep. Ed Vigil. The bill creates the position of Director of Water Project Permitting (permitting director) in the Governor’s Office to coordinate the federal, state, and local government permitting of raw water diversion, storage, or delivery projects, including associated hydroelectric facilities and both consumptive and nonconsumptive uses of water; and water projects that are either assessed a water quality certification fee or are eligible for financing from the Colorado Water Conservation Board (CWCB) Construction Fund.
  • SB 16-215 – Concerning Modifications to the Implementation of the State’s Payroll System that will Allow All State Employees to be Paid Twice a Month, by Sen. Jack Tate and Rep. Dave Young. The bill modifies the implementation of the state’s twice monthly payroll system authorized through House Bill 15-1392. The bill allows the State Personnel Director within the Department of Personnel and Administration to determine when to begin paying salaries twice a month, if it is determined that it is necessary to delay until after July 1, 2017, due to the implementation of the Human Resources Information System. Additionally, the bill eliminates one of the options an employee may use to repay a one-time loan authorized through HB 15-1392.

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

Uniform Trust Decanting Act, Governing Law for LLCs, Funding Marijuana Research, and More Bills Signed

On Monday, June 6, 2016, Governor Hickenlooper signed 34 bills into law. Governor Hickenlooper vetoed a bill on Thursday, HB 16-1231, “Concerning the Limited Use of Automated Vehicle Identification Systems Designed to Detect Disobedience to a Traffic Signal.” To date, the governor has signed 251 bills and vetoed one bill this legislative session.

The bills signed Monday include a bill enacting the Uniform Trust Decanting Act, a bill amending requirements for limited liability companies, a bill limiting the applicability of the statute of frauds to partnerships, a bill allowing appropriations from the marijuana cash fund to finance marijuana research, and more. The bills signed Monday are summarized here.

  • HB 16-1040 – Concerning Auxiliary Emergency Communications in the State, and, in Connection Therewith, Establishing the Auxiliary Emergency Communications Unit in the Office Of Emergency Management in the Department of Public Safety, and Making an Appropriation, by Rep. Jonathan Singer and Sen. Chris Holbert. The bill creates the Auxiliary Emergency Communications Unit, which can establish programs for training auxiliary emergency communications across the state.
  • HB 16-1142 – Concerning the Creation of a Credit Against the State Income Tax for Rural Primary Care Preceptors Training Students Matriculating at Colorado Institutions of Higher Education, by Reps. Perry Buck & Joann Ginal and Sens. Larry Crowder & John Cooke. The bill creates a state income tax credit for licensed Colorado health care professionals who provide uncompensated personalized instruction, training, and supervision to one or more graduate students seeking a medical degree at a Colorado institution for higher education.
  • HB 16-1177 – Concerning the Continuation of the Council of Higher Education Representatives, by Rep. Janet Buckner & Brittany Pettersen and Sen. Owen Hill. The bill extends the sunset of the Council of Higher Education Representatives until September 1, 2021.
  • HB 16-1186 – Concerning the Allocation of a Portion of Fee Revenues Collected from Public Utilities to Meet Colorado’s Grant Match Obligations Under Federal Law Governing the Funding of Fixed Rail Guideway Safety Oversight Programs, and, in Connection Therewith, Making an Appropriation, by Rep. Max Tyler and Sen. Randy Baumgardner. The bill diverts $150,000 of the public utility fees from the General Fund to the Fixed Utility Fund.
  • HB 16-1287 – Concerning a Requirement that the Department of Labor and Employment Study the Integration of Alternative Training by Colorado Businesses, by Reps. Paul Rosenthal & Jim Wilson and Sens. John Cooke & Andy Kefalas. The bill requires the Department of Labor and Employment to review its regulations that may impact the availability of apprenticeship and pre-apprenticeship programs in Colorado businesses by July 1, 2017.
  • HB 16-1329 – Concerning Laws Governing Limited Liability Companies Codified in Article 80 of Title 7 of the Colorado Revised Statutes, by Rep. Pete Lee and Sens. Mark Scheffel & Rollie Heath. The bill changes state law regarding limited liability companies, including removing the requirement that a partner’s contribution to the LLC is a prerequisite to becoming a member of the company, limits the statute of frauds, and reconciles various partnership and LLC acts.
  • HB 16-1330 – Concerning Authority to File a Correction Statement with the Secretary of State if a Document Previously Filed was Delivered to the Secretary of State for Filing in Error, by Rep. Pete Lee and Sens. Mark Scheffel & Rollie Heath. Under current law, an entity may file a statement of correction with the Secretary of State’s Office to revoke a previously filed document under certain conditions. This bill allows statements of correction to also be filed for a document that was delivered and filed in error.
  • HB 16-1332 – Concerning Modifications to the Income Tax Credits for Alternative Fuel Motor Vehicles, and, in Connection Therewith, Fixing Specified Dollar Amounts for the Credits, Allowing the Credit to be Assigned to a Financing Entity, Requiring Vehicle Identification Number Tracking of the Motor Vehicle for which the Credit is Claimed, and Making an Appropriation, by Reps. Crisanta Duran & Daneya Esgar and Sens. Ray Scott & Michael Johnston. The bill changes two refundable income tax credits in current law: the innovative motor vehicle credit and the innovative truck credit.
  • HB 16-1333 – Concerning Laws Governing Partnerships Codified in Title 7 of the Colorado Revised Statutes, by Rep. Pete Lee and Sens. Mark Scheffel & Rollie Heath. The bill limits the applicability of the statute of frauds to partnerships and specifies which laws govern limited partnerships.
  • HB 16-1348 – Concerning a Specific Crime of Cruelty to a Certified Police Working Dog, by Rep. Su Ryden and Sen. Nancy Todd. The bill creates the crime of cruelty to a law enforcement service animal as a class 6 felony for a first offense and a class 5 felony for subsequent offenses.
  • HB 16-1349 – Concerning Continuation of the Voluntary Contribution to the Military Family Relief Fund, by Reps. Su Ryden & Dan Nordberg and Sen. Morgan Carroll. The bill extends the voluntary contribution designation benefitting the Military Family Relief Fund through tax year 2020.
  • HB 16-1368 – Concerning the Codification of Current Practice for the Management of Records of Governmental Agencies, by Rep. Max Tyler and Sen. Beth Martinez Humenik. The bill clarifies and codifies the current practices of the state archivist in the Department of Personnel and Administration related to the storage and retention of state archives and public records.
  • HB 16-1373 – Concerning Requiring School Districts to Adopt a Policy Permitting the Use of Medical Marijuana by Students Authorized to Use Medical Marijuana, by Rep. Jonathan Singer and Sens. Chris Holbert & Vicki Marble. The bill allows school districts to adopt policies allowing medical marijuana use by students authorized to use medical marijuana.
  • HB 16-1375 – Concerning Changes to Dates for Submitting Reports that Involve the Department of Higher Education, by Reps. Jeni James Arndt & Jim Wilson and Sens. Nancy Todd & Owen Hill. Under current law, the Department of Higher Education and Department of Education are required to submit a joint report on February 1 annually. The bill changes the due date to April 1.
  • HB 16-1458 – Concerning Measures to Effectuate the Conservation of Nature Species in Colorado, and, in Connection Therewith, Making Appropriations from the Species Conservation Trust Fund for Purposes Recommended by the Department of Natural Resources, by Reps. Ed Vigil & Don Coram and Sens. Jerry Sonnenberg & Leroy Garcia. The bill appropriates $3.0 million from the Species Conservation Trust Fund for programs that are designed to conserve native species that have been listed as threatened or endangered under state or federal law, or are likely to become candidate species.
  • HB 16-1465 – Concerning Modifications to the Colorado Low-Income Housing Tax Credit, and, in Connection Therewith, Extending the Period During which the Colorado Housing and Finance Authority may Allocate Low-Income Housing Tax Credits, by Reps. Crisanta Duran & Jon Becker and Sens. Jessie Ulibarri & John Cooke. The bill extends the number of years, from two to five years, in which the Colorado Housing and Finance Authority may allocate low-income housing income tax credits.
  • SB 16-003 – Concerning Increased Methods to Reduce Wildfire Risk, by Sens. Ellen Roberts & Matt Jones and Rep. KC Becker. The bill adds broadcast burning to the types of projects and methods for which the Department of Natural Resources may award grants from the Wildfire Risk Reduction Cash Fund, and authorizes the transfer of a total of $3.0 million into the cash fund.
  • SB 16-041 – Concerning Data Collected by the Division of Criminal Justice in the Department of Public Safety Concerning the Study of Marijuana Implementation, by Sen. Randy Baumgardner and Rep. Dan Pabon. Currently, the Department of Criminal Justice is required to study law enforcement activities and costs related to the personal use and regulation of marijuana. This bill repeals the section of statute that requires the study to examine law enforcement costs and repeals the requirement that the study contain information concerning marijuana-initiated contacts by law enforcement, broken down by judicial district and by race and ethnicity.
  • SB 16-085 – Concerning the “Colorado Uniform Trust Decanting Act,” by Sen. Pat Steadman and Rep. Yeulin Willett. The bill enacts the Uniform Trust Decanting Act in Colorado, which allows a trustee to reform an irrevocable trust document within reasonable limits that ensure the trust will achieve the settlor’s original intent. The act prevents decanting—a term to describe the distribution of assets from one trust into a second trust—when it would defeat a charitable or tax-related purpose of the settlor.
  • SB 16-087 – Concerning Funding for the Highway-Rail Crossing Signalization Fund, and, in Connection Therewith, Making an Appropriation, by Sen. Randy Baumgardner and Rep. Max Tyler. The bill creates a one-time state transfer of $240,000 from off-the-top Highway Users Tax Fund (HUTF) revenue to the Highway-Rail Crossing Signalization Fund in FY 2016-17. In FY 2017-18 and each year thereafter, the bill creates a state diversion from the General Fund.
  • SB 16-104 – Concerning Incentives to Become a Teacher in a Rural School District in Colorado, and, in Connection Therewith, Making an Appropriation, by Sens. Nancy Todd & Jerry Sonnenberg and Rep. Jon Becker. The bill creates several new programs to provide incentives for individuals to become teachers in rural school districts, and to support the needs of professional educators in rural school districts.
  • SB 16-132 – Concerning Clarifying that Test Results Relating to Certain DUI Offenses are Not Public Information, by Sen. John Cooke and Rep. Mike Foote. The bill requires the Colorado Department of Public Health and Environment to keep all personal identifying information related to blood alcohol content test results confidential, and specifies that the test results may only be released to the individual who is the subject of the test, his or her attorney, a named party in a civil or criminal case to which the test results are directly related, or a prosecuting attorney, law enforcement officer, state agency, or state and local public official legally authorized to use such information to carry out his or her duties.
  • SB 16-135 – Concerning a Pharmacist’s Provision of Health Care Services that have been Delegated by Another Health Care Provider, by Sen. Irene Aguilar and Rep. Joann Ginal. The bill allows health insurance plans to provide coverage for health care services provided by a pharmacist as part of a collaborative pharmacy practice agreement if certain conditions are met. Specifically, the health plan must provide coverage for the same service if it is provided by a licensed physician or an advanced practice nurse and the pharmacist must be included in the insurers network of participating providers.
  • SB 16-146 – Concerning Modernizing Statutes Relating to Sexually Transmitted Infections, by Sen. Pat Steadman and Rep. Daneya Esgar. The bill updates state law concerning sexually transmitted infections (STIs) and allows for all STIs to be treated uniformly. It removes language specifically criminalizing HIV infection.
  • SB 16-171 – Concerning Modification and Clarification of the Statutes Pertaining to the New Energy Improvement District, by Sens. Beth Martinez Humenik & Mark Scheffel and Reps. Max Tyler & Jon Becker. The bill requires treasurers of counties that have authorized the New Energy Improvement District program to retain a 1 percent collection fee for each NEID special assessment that it collects. The bill also requires such treasurers to distribute NEID special assessments to the NEID in the same manner, less the collection fee, as property taxes are distributed.
  • SB 16-189 – Concerning the Nonsubstantive Revision of Statutes in the Colorado Revised Statutes, as Amended, and, in Connection Therewith, Amending or Repealing Obsolete, Imperfect, and Inoperative Law to Preserve the Legislative Intent, Effect, and Meaning of the Law, by Sen. Ray Scott and Rep. Mike Foote. The bill amends or repeals obsolete, unclear, or conflicting laws. The bill also clarifies statutory language, but does not change the intent or meaning of existing statute. The bill’s appendix explains the reasons for each amendment.
  • SB 16-191 – Concerning Marijuana Research Funded by the Marijuana Tax Cash Fund, and, in Connection Therewith, Making an Appropriation, by Sen. Pat Steadman and Rep. Bob Rankin. The bill authorizes the General Assembly to appropriate money from the Marijuana Tax Cash Fund to the Board of Governors of the Colorado State University System to fund scientific and social science research at CSU-Pueblo concerning marijuana and other matters that impact the state and its regions.
  • SB 16-193 – Concerning the Duties of the Safe2Tell Program, and, in Connection Therewith, Making an Appropriation, by Sens. Bill Cadman & Mark Scheffel and Reps. Dickey Lee Hullinghorst & Crisanta Duran. The bill requires the Department of Law to provide Safe2Tell program materials to Colorado preschools, elementary schools, middle schools, high schools, 4-H extension offices, and boys and girls clubs by August 1 of each year, beginning on June 30, 2017.
  • SB 16-195 – Concerning the Annual Appropriation of Money in the Central Fund for Veterans Centers to the State Department of Human Services, by Sen. Kevin Grantham and Rep. Bob Rankin. The bill grants the Department of Human Services continuous spending authority from the central fund for the direct costs of the operation and administration of veterans centers, and for capital construction in connection with the centers.
  • SB 16-196 – Concerning the Creation of a Pilot Program for Inclusive Higher Education for Persons with Intellectual and Developmental Disabilities, and, in Connection Therewith, Making an Appropriation, by Sens. John Cooke & Bill Cadman and Reps. Lois Landgraf & Dave Young. The bill creates a pilot program aimed at establishing higher education programs for students with intellectual and developmental disabilities. The program will operate from FY 2016-17 through FY 2020-21 at three institutions: the University of Northern Colorado, the University of Colorado-Colorado Springs, and Arapahoe Community College.
  • SB 16-203 – Concerning the Evaluation of State Tax Expenditures, and, in Connection Therewith, Making an Appropriation, by Sen. Kent Lambert and Reps. Millie Hamner & Bob Rankin. The bill directs the Office of the State Auditor to conduct evaluations of all state tax expenditures, and requires the evaluations to include descriptions of the expenditure’s purpose and intended beneficiaries, whether it is accomplishing its goal, costs and benefits of the expenditure, similar expenditures in other states, other businesses or programs accomplishing the expenditure’s goals, recommended changes, and performance measures used in the evaluation.
  • SB 16-204 – Concerning the Higher Education Revenue Bond Intercept Program, by Sen. Kent Lambert and Rep. Bob Rankin. The bill modifies the legislative and executive branch review and conditions of participation in the higher education revenue bond intercept program.
  • SB 16-205 – Concerning Payment for Expenses of Indigent Parents, by Sen. Kent Lambert and Rep. Millie Hamner. Under current law, the Office of the State Court Administrator receives funding to pay for an indigent parent to retain one expert witness and to obtain a transcript of the trial during a parent-child termination proceeding. Given that responsibility for retaining counsel for indigent parents in such cases is now managed by the Office of the Respondent Parents’ Counsel (ORPC), this bill clarifies that funding for these expenses are to be appropriated to the ORPC.
  • SB 16-209 – Concerning Authorizing a School District Board of Education to Construct a Building for Lease to a State Institution of Higher Education, by Sens. Nancy Todd & Chris Holbert and Reps. Janet Buckner & Kevin Priola. The bill authorizes a school district board of education to lease school district property to a state institution of higher education and to accept in-kind services (such as tuition reduction or scholarships for their students) from the institution as all or part of the lease payments.

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

Pregnancy Accommodations Bill, CCB Transparency Bill, and More Signed by Governor

On Wednesday, June 1, 2016, Governor Hickenlooper signed 13 bills into law. To date, the governor has signed 217 bills this legislative session. Some of the bills signed Wednesday include a bill requiring employers to make reasonable accommodations for pregnant women, a bill to increase transparency of community-centered boards, a bill authorizing the sale of land for expansion of Fort Logan National Cemetery, and more. The bills signed Wednesday are summarized here.

  • HB 16-1187 – Concerning a Sales and Use Tax Exemption for Meals Provided in Certain Retirement Communities, by Rep. Tracy Kraft-Tharp and Sen. Chris Holbert. The bill creates sales and use tax exemptions for food and food packaging to be consumed by residents on the premises of a retirement community, which includes assisted living residences, nursing homes that provide continuous nursing care, and independent living facilities providing services to residents age 55 and older.
  • HB 16-1277 – Concerning the Appeal Process for Medical Assistance Benefits, and, in Connection Therewith, Making an Appropriation, by Reps. Susan Lontine & Lois Landgraf and Sens. Andy Kefalas & Ellen Roberts. The bill requires the Department of Health Care Policy and Financing to give Medicaid clients at least 10 days advanced notice prior to suspending, terminating, or modifying a client’s medical assistance benefits. The bill also extends the deadline to appeal for a client to appeal the intended action to 60 days after the date of notice, up from 30 days under current law.
  • HB 16-1280 – Concerning the Regulation of Air Ambulance Service, and, in Connection Therewith, Making an Appropriation, by Rep. Faith Winter and Sen. Kent Lambert. The bill gives the CDPHE authority to establish state-level licensing of air ambulances that allows for air ambulance operators to receive a license either by gaining accreditation through an approved organization or by meeting licensing standards established by the CDPHE and the State Board of Health.
  • HB 16-1387 – Concerning Health Insurance Coverage for Severe Protein Allergic Conditions, by Rep. Dianne Primavera and Sen. Laura Woods. Current law requires that health insurance plans provide coverage for medical foods for newborn children with inherited enzymatic disorders caused by single gene defects involved in the metabolism of amino, organic, and fatty acids. This bill adds coverage for severe protein allergic conditions and amino acid-based elemental formulas.
  • HB 16-1397 – Concerning the Completion of the Fitzsimmons State Veterans Community Living Center to Provide a Continuum of Residential Care Options, by Reps. Su Ryden & JoAnn Windholz and Sens. Mary Hodge & Larry Crowder. The bill repeals and reenacts the authority of the Department of Human Services to build a veterans community living center and assorted facilities on the site of the former Fitzsimons Army Medical Center and outlines the requirements for the construction and use of the facilities.
  • HB 16-1438 – Concerning the Provision of Reasonable Accommodations by an Employer for Persons Who Have a Condition Related to Pregnancy, by Rep. Faith Winter and Sen. Beth Martinez Humenik. The bill requires employers to engage in a timely, good-faith, interactive process when an employee or applicant requests reasonable accommodations related to pregnancy or physical recovery from childbirth. Reasonable accommodations may include the provision of more frequent or longer break periods; more frequent bathroom, food, or water breaks; acquisition or modification of equipment or seating; limitations on lifting; temporary transfer to a less strenuous or hazardous position or light duty, if available; assistance with manual labor; or modified work schedules, as long as certain conditions are met.
  • HB 16-1456 – Concerning the Sale of a Portion of Land at the Colorado Mental Health Institute at Fort Logan to the United States Department of Veterans Affairs for the Expansion of Fort Logan National Cemetery, by Rep. Susan Lontine and Sen. Larry Crowder. The bill authorizes the Department of Human Services to sell up to 15 acres of vacant land around the Colorado Mental Health Institute at Fort Logan to the United States Department of Veterans Affairs at fair market value for purpose of expanding the Fort Logan National Cemetery.
  • SB 16-027 – Concerning Allowing the Option for Medicaid Clients to Obtain Prescribed Drugs Through the Mail, and, in Connection Therewith, Reducing an Appropriation, by Sens. Beth Martinez Humenik & Nancy Todd and Reps. Dianne Primavera & Lois Landgraf. Under current law, only a limited number of Medicaid recipients may receive maintenance medication by mail order. This bill expands the option to receive a three-month supply of maintenance medication through the mail to all Medicaid recipients.
  • SB 16-038 – Concerning Measures to Promote the Transparency of Community-Centered Boards, and, in Connection Therewith, Making Certain Community-Centered Boards Subject to Performance Audits Undertaken by the State Auditor, Making All Community-Centered Boards Subject to the “Colorado Local Government Audit Law”, Expanding Public Disclosure of the Administration and Operations of the Community-Centered Boards, and Making an Appropriation, by Sen. Irene Aguilar and Reps. Dave Young & Lang Sias. The bill requires a community centered board (CCB) that receives more than 75 percent of its annual funding from federal, state, or local governments, or any combination thereof, to be subject to the Colorado Local Government Audit Act.
  • SB 16-158 – Concerning the Ability of a Physician Assistant to Perform Functions Delegated by a Physician that are Within the Physician Assistant’s Scope of Practice, by Sen. Kevin Lundberg and Rep. Dianne Primavera. The bill clarifies and expands the duties that a physician may delegate to a physician assistant within his or her scope of practice, including allowing a PA to issue certain statements verifying a medical condition, obtain Level I accreditation in workers’ compensation matters, and more.
  • SB 16-190 – Concerning Improving the Process for County Administration of Public Assistance Programs, and, in Connection Therewith, Making and Reducing Appropriations, by Sen. Pat Steadman and Rep. Bob Rankin. The bill establishes performance standards to improve the administration of the Supplemental Nutrition Assistance Program, including requiring DHS to contract with an external vendor to collect data regarding costs and performance of several public assistance programs.
  • SB 16-202 – Concerning Increasing Access to Effective Substance Use Disorder Services Through Designated Regional Managed Service Organizations, and, in Connection Therewith, Making an Appropriation, by Sen. Pat Steadman and Rep. Dave Young. The bill requires each managed service organization to assess the sufficiency of substance use disorder services for various populations in its geographic region, and to prepare a community action plan to address the most critical service gaps by March 1, 2017. The bill allows appropriations from the Marijuana Tax Cash Fund to support the implementation of MSO community action plans and to provide substance abuse treatment.
  • SB 16-212 – Concerning Aligning Changes Made to the Federal Child Care and Development Block Grant Reauthorization of 2014 to the Twelve-Month Eligibility Requirement of the Colorado Child Care Assistance Program, by Sen. Larry Crowder and Rep. Janet Buckner. The bill makes changes to align state law on eligibility for the Colorado Child Care Assistance Program with federal law. Specifically, if an eligible participant’s income rises above the level set by the county to deny child care assistance during the twelve-month eligibility period, the county must continue providing the child care subsidy until the next twelve-month redetermination period.

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

Tenth Circuit: Arbitration Agreement Requiring Parties to Pay Own Costs Prohibitive to Plaintiff

The Tenth Circuit Court of Appeals issued its opinion in Nesbitt v. FCNH, Inc. on Tuesday, January 5, 2016.

Rhonda Nesbitt was a student at the Denver School of Massage Therapy (DSMT), and as such was required to provide massage therapy services to the public without compensation. Nesbitt filed a class action against DSMT’s parent companies (defendants) in April 2014, alleging that the students were effectively acting as employees in providing services to the public and, as such, were entitled to compensation under the Fair Labor Standards Act and wage and hour laws. Defendants moved the district court to stay the proceedings and compel arbitration pursuant to the arbitration agreement contained in plaintiffs’ student contract. The district court denied defendants’ motion, noting that although the agreement was not unconscionable, it effectively precluded Nesbitt from pursuing her claims because the cost of arbitration was prohibitive. The district court determined that because the arbitration agreement contained no savings clause, the entire agreement was unenforceable. Defendants filed an interlocutory appeal.

The Tenth Circuit first determined that the dispute was governed by the Federal Arbitration Act (FAA), and discussed the effective vindication exception, where plaintiffs are effectively prohibited from pursuing their claims because the prohibitive cost limits use of the arbitral forum. In this case, defendants argued that Nesbitt failed to carry her burden to show that arbitration would be prohibitively expensive. The Tenth Circuit disagreed. The Tenth Circuit found Nesbitt’s argument persuasive that the possibility of fee-shifting later in the arbitration is not the same as FLSA protection. The Tenth Circuit also rejected the defendants’ arguments that the arbitration agreement was silent as to fees and costs, noting it explicitly invoked the American Arbitration Association’s Commercial Rules, which address the allocation of fees and costs. The Tenth Circuit concluded that forcing an employee to pay for arbitration with the mere possibility of future reimbursement constituted prohibitive costs.

The Tenth Circuit affirmed the district court.

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.