April 30, 2017

SB 17-055: Prohibiting Employers from Mandating Labor Organization Membership

On January 13, 2017, Sen. Tim Neville and Rep. Justin Everett introduced SB 17-055, “Concerning the Prohibition of Discrimination Against Employees Based on Labor Union Participation.”

The bill prohibits an employer from requiring any person, as a condition of employment, to become or remain a member of a labor organization or to pay dues, fees, or other assessments to a labor organization or to a charity organization or other third party in lieu of the labor organization. Any agreement that violates these prohibitions or the rights of an employee is void.

The bill creates civil and criminal penalties for violations and authorizes the attorney general and the district attorney in each judicial district to investigate alleged violations and take action against a person believed to be in violation. The bill states that all-union agreements are unfair labor practices.

The bill was introduced in the Senate and assigned to the Business, Labor, & Technology Committee. It is scheduled for hearing in committee on February 6 at 2 p.m.

HB 17-1119: Providing a Workers’ Compensation Payment Mechanism for Uninsured Employers

On January 20, 2017, Reps. Tracy Kraft-Tharp & Lang Sias and Sens. Jake Tate & Cheri Jahn introduced HB 17-1119, “Concerning the Payment of Workers’ Compensation Benefits to Injured Employees of Uninsured Employers.”

The bill creates the ‘Colorado Uninsured Employer Act’ to create a new mechanism for the payment of covered claims to workers who are injured while employed by employers who do not carry workers’ compensation insurance. The bill creates the Colorado uninsured employer fund, which consists of penalties from employers who do not carry workers’ compensation insurance.

The bill creates the uninsured employer board to establish the criteria for the payment of benefits, to set rates, to adjust claims, and to adopt rules. The board is required to adopt, by rule, a plan of operation to administer the fund and to institute procedures to collect money due to the fund.

The bill was introduced in the House and assigned to the Business Affairs and Labor Committee.

HB 17-1029: Allowing Records Custodians to Deny Access to Confidential Personal Information

On January 11, 2017, Rep. Polly Lawrence and Sen. Bob Gardner introduced HB 17-1029, “Concerning Public Records that are Subject to Denial of Inspection.”

The bill allows a custodian to deny access to confidential personal information records and employee personal e-mail addresses. The provisions of the ‘Colorado Open Records Act’ that relate to civil or administrative investigations and trade secrets and other privileged and confidential information apply to the judicial branch.

The bill was introduced in the House and assigned to the State, Veterans, and Military Affairs Committee. It is scheduled to be heard in committee on February 2 upon adjournment.

HB 17-1013: Concerning the Free Exercise of Religion

On January 11, 2017, Reps. Stephen Humphrey & Dave Williams and Sens. Tim Neville & Vicki Marble introduced HB 17-1013, “Concerning a Person’s Free Exercise of Religion.”

The bill:

  • Specifies that no state action may burden a person’s exercise of religion, even if the burden results from a rule of general applicability, unless it is demonstrated that applying the burden to a person’s exercise of religion is essential to further a compelling governmental interest and the least restrictive means of furthering that compelling governmental interest;
  • Defines ‘exercise of religion’ as the practice or observance of religion. The bill specifies that exercise of religion includes the ability to act or refuse to act in a manner substantially motivated by a person’s sincerely held religious beliefs, whether or not the exercise is compulsory or central to a larger system of religious belief; except that it does not include the ability to act or refuse to act based on race or ethnicity.
  • Provides a claim or defense to a person whose exercise of religion is burdened by state action; and
  • Specifies that nothing in the bill creates any rights by an employee against an employer unless the employer is a government employer.

The bill was introduced in the House and assigned to the State, Veterans, and Military Affairs Committee. It is scheduled to be heard in committee on January 25, 2017 at 1:30 p.m.

Colorado Court of Appeals: Collective Bargaining Agreement Provided for Payment for ELA Classes

The Colorado Court of Appeals issued its opinion in Denver Classroom Teachers Association v. School District No. 1 in the County of Denver and State of Colorado on Thursday, January 12, 2017.

Collective Bargaining Agreements—Damages—Statute of Limitations—Administrative Remedies.

School District No. 1 and the Board of Education of School District No. 1 in the County of Denver and State of Colorado (collectively, the District) and the Denver Classroom Teachers Association (DCTA) entered into several collective bargaining agreements (CBAs) and extensions from 2005 to 2015. From the mid-1990s until the 2006–07 school year, the District compensated teachers for attending English Language Acquisition (ELA) training. ELA is a program to train teachers to work more effectively with students who have limited English language proficiency. A federal consent order requires the District to have teachers who are trained to teach such students. After the 2006–07 school year, the District stopped paying teachers for attending the training. DCTA filed a grievance against the District alleging violations of the 2005–08 CBA. DCTA subsequently filed suit for breach of the 2005–08 and 2008–11 CBAs and the extensions, and a jury returned verdicts in favor of DCTA for breach of contract, but it held the District not liable in special interrogatories regarding breach for teachers in the Professional Compensation (ProComp) system.

On appeal, the District first contended that the CBAs and extensions were unambiguous and that they did not require the district to pay teachers for ELA training. Because the articles provide for payment for work beyond the 40-hour week, and because the ELA training may fall into that category, the contract was fairly susceptible to being interpreted to require payment for such work. Therefore, the CBAs were ambiguous, and the trial court properly let the interpretation go to the jury as a question of fact.

The District next contended that additional evidence showed unambiguously that it was not required to compensate teachers for ELA training beyond that year because (1) ELA training was a special condition of employment and (2) the parties’ bargaining history indicates that any requirement to compensate teachers for ELA training was purposely excluded from the CBAs. First, the CBAs were ambiguous regarding whether ELA training is a “special condition” regarding assignment of the teacher, requiring the teachers, not the District to pay for the training. Second, the District’s past practice of paying teachers for ELA training supported DCTA’s position that the CBAs entitled teachers to receive pay for ELA training.Therefore, the question was properly given to the jury.

The District also asserted that the trial court erred in not precluding recovery of damages that accrued before October 24, 2007, which was six years before the case was filed. The statute of limitations for breaching a CBA is six years. The District stopped paying teachers for ELA training starting with the 2007–08 school year, which began on August 13, 2007. DCTA filed its complaint on October 24, 2013. The trial court did not commit reversible error in deciding to award damages for the complete Fall 2007 semester.

Finally, the District contended that DCTA should have been barred from any relief for the 2008–09 school year and beyond because it failed to exhaust administrative remedies for those years. DCTA filed a grievance only for the 2007–08 school year, which was under the 2005–08 CBA. Further efforts by DCTA to achieve payment for ELA training through administrative remedies would have been futile, and the trial court did not err in this finding.

DCTA, in its cross-appeal, contended that the trial court erred in giving the jury special interrogatories to decide whether teachers under the ProComp system were exempt from receiving extra pay for ELA training. Because competent evidence supported the assertion, the trial court did not abuse its discretion in allowing the jury to determine whether teachers under the ProComp agreement forfeited their entitlement to compensation for ELA training.

The final judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Top Ten Programs and Homestudies of 2016: Employment Law and Workers’ Compensation

The year is drawing to a close, which means that the compliance period is ending for a third of Colorado’s attorneys. Still missing some credits? Don’t worry, CBA-CLE has got you covered.

Today we are featuring the Top Ten Programs and Homestudies in Employment Law and Workers’ Compensation. In addition to this sampling of programs and homestudies, CBA-CLE offers several other great books and programs for both employment law and workers’ compensation.

10. Non-compete Agreements, Confidentiality Agreements, and Other Restrictions on Employee Competition
When and how should restrictive covenants like non-compete agreements be used? Can they be enforced? How broad can they be? Should the employer try to enforce them? Is a non-solicit agreement subject to the same rules? Can you sue the new employer? Is there any way to protect the company from “raiding?’ Can I hire a person who has signed a non-compete? Can employees prepare to compete while they are still on my payroll? Are employees free to do what they want after they leave if they do not have a non-compete? Are customer lists trade secrets? Why do I need more than a confidentiality agreement? When is injunctive relief likely to be granted or rejected? What can I expect in non-compete trade secret litigation? These and many other questions are explored in this practical program for all those who draft, enforce or seek to avoid restrictive employment covenants. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 4 general credits.

9. Workplace Discrimination
Join the debate Between the ACLU and Focus on the Family on the Intersection of Religious Freedom and Workplace Anti-Discrimination Laws; Federal Court Judge Christine Arguello WIll Moderate a Panel of State Court Judges from across Colorado Who Will Answer Your Questions Concerning How Individual Districts are Preparing for the Potential Increase of Employment Discrimination Case Filings; Be a Fly on the Wall: Find out What Goes on in the Other Room During a Mediation Moderated by Honorable Michael Hegarty, Magistrate Judge, United States District Court for the District of Colorado; and much more. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 7 general credits, including 1 ethics credit.

8. Workers’ Compensation Basics: Learn How the System Works
Workers’ compensation is a highly specialized area of the law. It is full of detail and nuance that you have to be aware of if you want to be successful. If you would like to add this area to your practice, register for this program today, so you can lay the groundwork on foundational concepts like medical benefits, indemnity and compensability. Additionally, two judges’ panels and essential ethics rules in workers’ compensation arena are included. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 6 general credits, including 1 ethics credit.

7. Workers’ Compensation Fall Update 2016
If you practice workers’ compensation law in Colorado, the CBA-CLE Workers’ Compensation Fall Update is the place to be. Register now so you can get the latest information from the Division and the Office of Administrative Courts. Get a thorough understanding of joint replacements, the DIME process, and unemployment insurance in the workers’ compensation context. Get the inside track on the Division’s website, and a tour of Medicaid in the workers’ compensation world. Finally, get a clear understanding of your ethical role when it comes to IMEs. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 6 general credits, including 1 ethics credit.

6. Whistleblower Litigation, Discrimination, and the First Amendment: Employment Law Fall Update
Is sworn testimony outside of one’s ordinary job duties entitled to First Amendment protection? The United States Supreme Court decided this and related issues in Lane v. Franks, and the case will be discussed at the Fall Program. Federal and state whistleblower litigation has been in the headlines. Not only will a judge from the Merit Systems Protection Board be speaking on The Federal Whistleblower Protection Act, but a national panel will be gathered to discuss what employment lawyers need to know about state law qui tam claims. Also, as the American work force ages, never has the issue of age discrimination been more important. Get the most up-to-date information on the ADEA, and hear discussion on a changed discrimination doctrine for our changed social paradigm. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 8 general credits.

5. The Amended Colorado Anti-Discrimination Act: Best Practices for Small Employers
The Colorado Anti-Discrimination Act (“CADA”) was recently amended to provide enhanced remedies for employees who experience discrimination. Unlike the federal anti-discrimination laws, CADA applies to employers of all sizes, including your firm. Do you know how to prevent and address complaints of discrimination within your firm? This program covers the scope of CADA including the administrative exhaustion process; defenses; and damages, and review best practices for all employers, both to prevent and address claims, including a discussion of real-life examples. Order the Video OnDemand here and the MP3 here. Available for 1 general credit.

4. Key Strategies for your Practice: Employment Law Fall Update
Your day begins with TWO tracks! One for attorneys who are new to the area of labor and employment, and one track if you have some experience under your belt. For the New Lawyer’s Track, learn what employment law state and federal statutes are key to your labor and employment law practice from two of the most experienced law professors in the State. Then enjoy a “how-to” workshop on client intake, complete with a YouTube video! On the Advanced Track, get up to speed on the aspects of representing clients in the marijuana industry: the ethics, the payroll, and other employment-related challenges. Finish the morning on the Advanced Track by discovering the nuances in the use of electronic evidence in an employment law case. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 6 general credits, including 1 ethics credit.

3. Hot Topics in Employment Litigation: Managing High-profile Cases, Implicit Bias, and Other Issues
The practice of law has never been busier. Listen to Jay Tiftickjian’s insights to get some sanity from the myriad of demands that practicing law makes on us. One of these many demands is implicit bias in the courtroom and on your juries. Join the discussion on how to overcome these prejudices in your employment law cases. A highlight of the day will be the panel presentation on managing high-profile cases in the press! Join reporters from all of the major networks, who will give you the information you need to have when you get a case that’s in the news. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 8 general credits, including 2 ethics credits.

2. Staying Ahead of the Changes: Workers’ Compensation Spring Update 2016
The Planning Committee has been bringing you incomparable CLE programs, and the 2016 Spring Update does not disappoint. As always, get an up-to-the-minute Case Law Update. There is always something new to know about Medicare Set-Asides, so this topic is included on the agenda. Have you ever wondered why the Division of Workers’ Compensation does certain things? Get a glimpse behind the curtain! Then tune in for changes to Rule 9 from the perspectives of the claimant, the respondents and the bench. The all-important medical topic for the Spring Update is about the changes to the upper and lower extremity medical treatment guidelines. Finally, the head of the Office of Attorney Regulation talks about a possible new model of self-regulation in Colorado. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 6 general credits, including 1 ethics credit.

1. Proactively Prepare for What Lies Ahead: Employment Law Conference 2016
Whether you practice from the plaintiff or defense perspective… Are a solo practitioner or are a member of a large firm… Whether you are new to employment law or a seasoned professional… Choose the Litigation Track, the Counseling Track, or a combination of the two… Your experienced and knowledgeable faculty will give you balanced and comprehensive reviews of cutting-edge topics, regulations, and the most recent cases for you and your clients. Order the CD homestudy here and the MP3 here. Available for 17 general credits, including 1 ethics credit.

Courthouse of the U.S. District Court Closed on Friday, December 9, 2016

The U.S. District Court for the District of Colorado announced a courthouse closure. On Friday, December 9, 2016, from 12:45 to 6 p.m., the courthouse will be closed for business due to a law enforcement training exercise. The Alfred A. Arraj Courthouse will be closed to the public. The Byron G. Rogers Courthouse will remain open, but no court business will be conducted. Court business in the Durango and Grand Junction courthouses will be conducted as scheduled. All electronic systems to include CM/ECF and PACER will remain in operation during this time period. For more information, click here.

Colorado Court of Appeals: Cafeteria Plan Deductions Should Not Be Included in Unemployment Compensation Calculations

The Colorado Court of Appeals issued its opinion in Meyer v. Industrial Claim Appeals Office on Thursday, November 17, 2016.

Lizabeth A. Meyer (Claimant) received unemployment compensation benefits in the amount of $500 per week, effective March 11, 2012, and continuing until May 19, 2012, when she obtained full-time employment. During the majority of that period, she worked part-time at Coach, and for the last two weeks she worked full-time at Sutrak. A deputy for the Division of Unemployment Insurance conducted an audit of Claimant’s file and determined that she had been overpaid unemployment compensation benefits in the amount of $1,712 for the period from March 18, 2012, through May 19, 2012. The deputy found that claimant had underreported her hours and earnings for certain weeks during that period, and assessed a monetary penalty of $1,112.80 against her.

Claimant appealed the deputy’s determination and an evidentiary hearing was held, at which Claimant conceded that the hours reported on her paystubs, rather than those she reported online, accurately reflected the hours she worked. However, she asserted that she was only required to report her taxable earnings, not her gross earnings. The Division’s hearing officer accepted Claimant’s concessions about the hours worked but held that she was required to report her gross earnings. The hearing officer found that because Claimant knowingly misrepresented her gross earnings, she was overpaid $1,890.64 in unemployment compensation, and assessed a monetary penalty of $1,228.91. Claimant appealed to the Industrial Claim Appeals Office, and the Panel affirmed. Claimant then appealed to the Colorado Court of Appeals.

Claimant contended the Panel erred in determining she was required to report her gross earnings rather than her taxable earnings, arguing she was not required to report any contributions to her 26 U.S.C. § 125 cafeteria plan. The court of appeals agreed. The court found that the Division required Claimant to report her gross earnings, but that was in contravention of the definition of “wages” in C.R.S. § 8-70-142. The court held the Division erred in requiring Claimant to report her gross wages without deducting contributions to her § 125 cafeteria plan.

Claimant next contended that the Panel erred in upholding the hearing officer’s determination that she knowingly failed to report her earnings accurately, and that both the Panel and hearing officer erred in determining she had received an overpayment and imposing a monetary penalty. The court of appeals agreed in part. The court found that, for the period from May 6 through May 21, 2012, Claimant was not eligible for unemployment compensation benefits and therefore was overpaid $1,000 for this period. The court found the Division did not err in imposing the 65% penalty for this period, in the amount of $650. However, for the period for which Claimant worked for Coach, she was eligible for benefits. Because the Division calculated Claimant’s overpayment based on her gross earnings rather than her taxable wages, the Division erred in its calculations. The court of appeals analyzed Claimant’s taxable wages and found an overpayment of $76 for the period in which she worked for Coach. The 65% penalty for this amount is $49.40, for a total of $125.40 owed for the period in which Claimant worked for Coach.

The court of appeals affirmed in part, reversed in part, and remanded with directions for the Panel to issue a new order regarding the $76 overpayment.

District of Colorado Local Rules Amended, Effective December 1, 2016

The U.S. District Court for the District of Colorado has adopted changes to its local rules, effective December 1, 2016. The changes include a new Rule 2.1, “Forms of Action,” and an entire section on Local Patent Rules.

New Rule 2.1 clarifies that a proceeding not defined as a civil action under F.R.C.P. 2 should be filed as a civil miscellaneous (“mc”) or registered judgment (“rj”) action only if included in the List of Miscellaneous Cases. Rule 5.3 was amended by the addition of a subparagraph (c) dealing with written discovery requests or responses. The subparagraph specifies that other than in prisoner cases or as otherwise ordered, discovery requests shall be submitted by email or in other non-paper form. There were several other minor changes to various rules.

Section III on the Local Patent Rules is a comprehensive section dealing with the handling of patent claims in the U.S. District Court. The local rules are to be cited as D.C.Colo.LPtR _. The rules are to be known as the Local Rules of Practice of the United States District Court for the District of Colorado – Patent Rules. The rules specify that the civil local rules apply except as inconsistent with the patent rules. Topics addressed in the local patent rules include scheduling conferences and orders, discovery and confidentiality, infringement, invalidity, declaratory judgment, reliance on counsel’s opinion, claim construction, final infringement and invalidity contentions, and word limits. The remaining sections were renumbered accordingly.

Comments about the local rules may be submitted to the Advisory Committee on the Local Rules via email. For more information about the local rule changes, click here. For a redline of the changes, click here.

Tenth Circuit: Employer’s Payment of Food Expenses Exempt from FLSA Overtime Compensation Rate

The Tenth Circuit Court of Appeals issued its opinion in Sharp v. CGG Land (USA), Inc. on Friday, November 4, 2016.

CGG is a company that provides seismic mapping services at remote locations throughout the United States. CGG employees are required to travel away from home for several weeks to the remote locations. Generally, employees travel for four-to-eight week intervals, then return home for two-to-four week intervals before returning to the field. While traveling, CGG provides a $35 per diem for meals, except when food is provided. A group of employees filed suit against CGG, arguing CGG violated the Fair Labor Standards Act (FLSA) by not including in their regular reimbursement rates the $35 per diem for food during travel periods.

After stipulating to material facts in district court, including that $35 was a reasonable amount for daily meals, each party moved for summary judgment. The district court granted summary judgment to CGG. The district court agreed with CGG that the per diem payments were exempt travel expenses under 29 U.S.C. § 207(e)(2). The employees appealed.

On appeal, the employees argued the payments were not exempt for days when they traveled to and from remote job sites, because they did not do any work on those days. Employees further claimed the payments were not exempt for days they spent at the job sites because they were no longer traveling over the road. Employees also claimed CGG waived all defenses except its claim that the payments were exempt under § 207(e)(2). The Tenth Circuit rejected each contention in turn.

The Tenth Circuit noted that the Department of Labor rejected the argument that food costs may not be included as “living expenses.” The Tenth Circuit agreed with the DOL that the cost of food is an expense the employee incurs for the employer’s benefit and therefore is an exempt living expense. Employees argued they were not “traveling over the road” once they reached the job site, but the Tenth Circuit characterized this as a hyper-literal construction of the word “traveling.” The Tenth Circuit read “traveling” as all time away from home, not just time in transit. Employees also suggested CGG paid the $35 as part of a scheme to set an artificially low hourly pay rate to underpay overtime pay. The Tenth Circuit found the parties’ stipulation that the $35 per diem was reasonable defeated this argument.

The Tenth Circuit affirmed the district court’s grant of summary judgment to CGG.

Colorado Court of Appeals: Denver’s Civil Service Commission May Impose Burden on Employee in Adverse Personnel Action

The Colorado Court of Appeals issued its opinion in Marshall v. Civil Service Commission of the City & County of Denver on Thursday, October 20, 2016.

Burden of Proof—Adverse Personnel Action.

Police officer Marshall was suspended by the Executive Director of Safety (Director). He appealed the Director’s decision, and a hearing officer found that he proved the Director’s actions to have been clearly erroneous. The Director appealed to the Civil Service Commission of the City and County of Denver (Commission), which reversed the hearing officer’s decision. Marshall then challenged the Commission’s decision in district court, and the court upheld the Commission’s decision. Marshall appealed.

Marshall’s sole contention on appeal was that the Commission violated the Denver City Charter (Charter) by imposing, by rule, the burden on him to show that the Director’s action was clearly erroneous.

The Court of Appeals noted that the Charter does not expressly address the burden of proof and it delegates unlimited rulemaking authority to the Commission regarding hearing procedures. The burden of proof in a hearing is a matter of procedure. The Commission may place the burden of proof on the employee by rule as long as the rule is consistent with the Charter. Here, the Court discerned no inconsistency.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Truth-in-Leasing Act Prohibits Trucking Company Charging Independent Truckers for Satellite System

The Tenth Circuit Court of Appeals issued its opinion in Fox v. TransAm Leasing, Inc. on Tuesday, October 18, 2016.

Plaintiffs, three independent truckers representing themselves and a class of similarly situated truck drivers (“truckers”), contend that Defendants TransAm Trucking, Inc. and TransAm Leasing, Inc. (collectively “TransAm”) violated the Department of Transportation’s truth-in-leasing regulations by requiring the truckers, who lease their trucks and driving services to TransAm, to pay TransAm $15 each week to use TransAm’s satellite communications system. This $15 usage fee violates 49 C.F.R. § 376.12(i), which precludes a motor carrier like TransAm from requiring a trucker “to purchase or rent any products, equipment, or services from the authorized carrier as a condition of entering into the lease arrangement.” The Tenth Circuit, therefore, affirmed partial summary judgment for the truckers. That ruling will support the truckers’ requests for injunctive and declaratory relief. But the truckers also asserted a claim for damages, which the district court certified as a class action. Because the truckers failed to present any evidence of their damages resulting from the unlawful usage fee, however, the district court should have entered summary judgment for TransAm on that damages claim. Having jurisdiction under 28 U.S.C. § 1292(b), therefore, The Tenth Circuit AFFIRMED the district court in part and REVERSED in part.