May 18, 2013

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Bills Regarding Job Protection, Authorization for Foreign Investments, Electric Vehicle Charging Stations, and More Signed by Governor Hickenlooper

May 7, 2013 by Leave a Comment

As the 2013 legislative session winds down, bills continue to reach Governor Hickenlooper’s desk for review and signature. Since January 31, 2013, the governor has signed 169 bills.

Governor Hickenlooper signed the “Job Protection and Civil Rights Enforcement Act,” HB 13-1136, on Monday, May 6, 2013. HB 13-1136 - Concerning the Creation of Remedies in Employment Discrimination Cases Brought Under State Law, by Reps. Claire Levy and Joe Salazar and Sens. Morgan Carroll and Lucia Guzman, establishes provisions for complaining parties who have exhausted administrative remedies to bring actions in state court. It also allows claims to be brought by employees of companies with fewer than 15 employees, which are exempt under Federal anti-discrimination provisions.

On May 5, the governor signed one bill, SB 13-176 - Concerning Authorization for the State Treasurer to Invest State Moneys in Debt Obligations Backed By the Full Faith and Credit of the State of Israel. This bill was sponsored by Sens. Mark Scheffel and Morgan Carroll and Reps. Justin Everett and Angela Williams, and it authorizes the state treasurer to invest state moneys in Israeli bonds.

The governor signed 10 bills on Friday, May 3, 2013. Three of the ten bills signed are summarized here.

  • SB 13-126 - Concerning the Removal of Unreasonable Restrictions on the Ability of the Owner of an Electric Vehicle to Access Charging Facilities, by Sen. Lucia Guzman and Rep. Crisanta Duran. The bill requires landlords and common interest communities to allow unit owners to install electric vehicle charging stations on their own property.
  • HB 13-1167 - Concerning the Collection of Business Information by the Secretary of State, by Reps. Brittany Pettersen and Crisanta Duran and Sen. Larry Crowder. The bill requires the Secretary of State to request certain demographic information from business owners, which will be available to the public on the Secretary of State website. The demographic information includes gender, race, veteran status, disability status, and NAICS code, and submission of the information is voluntary.
  • HB 13-1222 - Concerning the Expansion of the Group of Family Members for whom Colorado Employees are Entitled to Take Leave from Work under the “Family and Medical Leave Act of 1993″, by Rep. Cherylin Peniston and Sen. Jessie Ulibarri. The bill allows employees to take leave under FMLA to care for their partners in civil unions.

On April 29, 2013, the governor signed six bills. These included the long appropriations bill, three Joint Budget Committee bills regarding the General Fund, and a bill to allow students who complete high school in Colorado to qualify for in-state tuition classification (SB 13-033 – Concerning In-State Classification at Institutions of Higher Education for Students who Complete High School in Colorado, by Sens. Angela Giron and Mike Johnston and Reps. Crisanta Duran and Angela Williams.) Governor Hickenlooper also signed the budget bill, SB 13-230, on April 29.

On April 26, 2013, Governor Hickenlooper signed 16 bills. Five of these are summarized here.

  • HB 13-1025 - Concerning an Increase in the Amount of the Authorized Deductible for Workers’ Compensation Insurance Policies, by Rep. Spencer Swalm and Sen. Cheri Jahn. The bill increases the allowable deductible for employers’ workers’ compensation insurance policies.
  • HB 13-1123 - Concerning the Right of a Person to Waive Confidentiality Requirements Protecting Personal Work Information Obtained by the Department of Labor and Employment for Unemployment Benefit Claims to Permit the Department to Forward Certain Information to Potential Employers, by Rep. Tony Exum and Sen. Jim Kerr. The bill allows the Department of Labor and Employment to offer job seekers the opportunity to waive confidentiality so that their personal information may be made available to bona fide employers seeking employees.
  • HB 13-1258 - Concerning Local Government Involvement with Federal Immigration Issues, by Rep. Joe Salazar and Sens. Irene Aguilar and Morgan Carroll. The bill repeals C.R.S. Title 29, Article 29, which required local law enforcement officers to report any suspected illegal immigrants to federal immigration officials.
  • SB 13-048 - Concerning the Use of Highway User Tax Fund Moneys Allocated to Local Governments for Multimodal Transportation Infrastructure, by Sen. Nancy Todd and Reps. Max Tyler and Jeanne Labuda. The bill allows counties and municipalities to spend moneys received from the Highway User Tax Fund on transit-related projects.
  • SB 13-070 - Concerning the Purchase of Vehicles that Operate on Alternative Fuels for the State Motor Vehicle Fleet System, by Sen. Gail Schwartz and Reps. Ray Scott and Max Tyler. The bill requires the Department of Personnel and Administration to report on the number of alternative fuel vehicles purchased, the use of alternative fuel, and a plan to develop the infrastructure necessary to utilize more alternative fuel vehicles.

For a complete list of legislation signed into law by the governor in 2013, click here.

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HB 13-1304: Allowing Unemployment Benefits to Employees Subject to Employer-Initiated Lockout

May 1, 2013 by Leave a Comment

On April 11, 2013, Rep. Dominick Moreno and Sen. Lucia Guzman introduced HB 13-1304 - Concerning Eligibility for Unemployment Compensation Benefits when Unemployment is Due to a Lockout. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report and the legislative Fiscal Notes.

This bill allows an employee who is subject to an employer-initiated lockout to receive unemployment benefits. It also removes the existing definitions of an offensive lockout, defensive lockout, and multiemployer bargaining unit.

Labor-management disputes rarely escalate to the level of an employer locking out employees. Since 1996, Colorado workers have not experienced a lockout by any employer. If no lockouts are experienced in any given year, there will be no impact on the Unemployment Compensation (UC) Trust Fund.

This bill was amended upon Second Reading in the House, but passed Third Reading unamended and was introduced in the Senate on April 22. It was assigned to the Senate Judiciary Committee, where it was not amended and was referred to the Senate Committee of the Whole for Second Reading.

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Governor Hickenlooper Signs Bills Regarding Water Law, Medical Marijuana, Unemployment Insurance, and More

April 19, 2013 by Leave a Comment

Governor Hickenlooper continues to sign bills as they reach his desk. To date, he has signed 137 bills into law.

On April 4, 2013, the governor signed 19 bills. Five of them are summarized here.

  • SB 13-074 - Concerning the Resolution of Ambiguities in Old Water Right Decrees Regarding the Place of Use of Irrigation Water, by Sen. Mary Hodge and Rep. Jerry Sonnenberg. The bill creates a mechanism to determine the maximum number of acres that may be irrigated under a pre-1937 determination of water rights.
  • HB 13-1054 - Concerning Lessening the Reduction of Unemployment Insurance Benefits Required when a Claimant Withdraws Amounts from a Retirement Plan as a Result of Unemployment, by Reps. Jovan Melton and Tony Exum and Sen. Lois Tochtrop. The bill changes the way unemployment benefits are affected by the withdrawal of funds from employer-sponsored retirement accounts.
  • HB 13-1061 - Concerning Standards for Responsible Medical Marijuana Vendors, by Rep. Dominick Moreno and Sen. Irene Aguilar. The bill creates the Responsible Medical Marijuana Vendor Server and Seller Designation for licensed medical marijuana businesses and establishes procedures for receiving the designation.
  • HB 13-1124  - Concerning the Reduction of Improper Unemployment Insurance Benefit Payments Through Compliance with the Federal “Trade Adjustment Assistance Extension act of 2011″ and Making an Appropriation, by Reps. Dan Pabon and Amy Stephens and Sen. Cheri Jahn. The bill conforms Colorado unemployment insurance law with federal law.
  • HB 13-1157 - Concerning Adoption of the 2012 “Uniform Commercial Code” Article 4.5 Amendments, by Rep. Frank McNulty and Sen. Angela Giron. The bill clarifies provisions of the Uniform Commercial Code regarding remittance transfers.

The governor signed 12 bills on April 8, 2013. Four of them are summarized here.

  • SB 13-030 - Concerning an Additional Review of Rules Promulgated Pursuant to the “State Administrative Procedure Act” by Committees of Reference of the General Assembly, by Sen. Mark Scheffel and Rep. Dan Nordberg. The bill creates additional notice for the public and the General Assembly for rules adopted as a result of legislation.
  • SB 13-041 - Concerning the Protection of Stored Water and Preserving Supplies for Drought and Long-Term Needs, by Sens. Mary Hodge and Ellen Roberts and Reps. Randy Fischer and Jerry Sonnenberg. The bill, enacted because of the Colorado Supreme Court ruling in Upper Yampa Water Conservatory District v. Wolfe, expands the term “beneficial use” and clarifies rules regarding water storage rights.
  • SB 13-116 - Concerning the Authority of Forensic Psychologists to Conduct Mental Health Evaluations under Article 8 of Title 16, Colorado Revised Statutes, by Sen. Jessie Ulibarri and Rep. Pete Lee. The bill authorizes licenses forensic psychologists to conduct mental health evaluations for criminal defendants if so ordered by the court.
  • HB 13-1202 - Concerning Counseling by Medicaid Providers Relating to Medical Orders for Scope of Treatment, by Reps. Cheri Gerou and Mark Ferrandino and Sen. John Kefalas. The bill allows reimbursement for Medicaid providers who offer counseling regarding medical orders for scope of treatment.

Finally, on April 18, 2013, Governor Hickenlooper signed four bills into law. They are summarized here.

  • HB 13-1060 - Concerning Raising the Maximum Fine that may be Assessed by a Municipal Court, by Rep. Mike McLachlan and Sen. Linda Newell. The bill raises the maximum fine that may be assessed by a municipal court and allows for adjustments for inflation.
  • HB 13-1147 - Concerning Voter Registration Facilitated by State Institutions of Higher Education, by Rep. Jovan Melton and Sen. Linda Newell. The bill requires state institutions of higher education to provide a link to voter registration for students who are registering online for classes, and to provide information about voter registration if the institution does not use online registration.
  • HB 13-1179 - Concerning Deadlines for State Agencies to Submit Documents Related to Appropriations to the Joint Budget Committee, by Rep. Claire Levy and Sen. Pat Steadman. The bill requires state agencies to submit budget requests by certain deadlines.
  • HB 13-1243 - Concerning Factual Findings Included in Parenting Time Orders, by Rep. Dave Young and Sen. Jessie Ulibarri. The bill requires courts to submit specific facts to support endangerment of child in orders that restrict parenting time.

For a complete list of the governor’s 2013 legislative decisions, click here.

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SB 13-157: Continuing the “Colorado Work Share Program”

March 8, 2013 by Leave a Comment

On Monday, February 4, 2013, Sen. Rollie Heath introduced SB 13-157 – Concerning the Continuation of the “Colorado Work Share Program.” This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The “Colorado Work Share Program” (program) was created by the general assembly in 2010 to allow employees whose work hours have been reduced to collect prorated unemployment benefits as long as certain requirements are met by the employer and the employee.

The bill makes changes to the program to bring it into compliance with federal law, including required features of a work share plan to make it eligible for approval by the director of the division of unemployment insurance. The bill extends the program indefinitely. The bill also allows eligible employees to participate in certain job training programs. The bill repeals a mechanism that triggers a repeal of the program.

Currently, the federal government will reimburse states for unemployment compensation benefits paid under the program. The bill clarifies that the employer’s account will only be charged for the unemployment compensation benefits if the federal money is not available. The bill also increases the cap on the number of weeks that employees may be paid benefits under the program from 18 to 26 weeks. On Feb. 27, the Business, Labor, & Technology sent the unamended bill to the Appropriations Committee for consideration of the fiscal impact.

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HB 13-1124: Changing Colorado’s Unemployment Insurance Laws In Order to Comply with Federal Law

March 6, 2013 by Leave a Comment

On January 18, 2013, Rep. Dan Pabon and Sen. Cheri Jahn introduced HB 13-1124 - Concerning the Reduction of Improper Unemployment Insurance Benefit Payments Through Compliance with the Federal “Trade Adjustment Assistance Extension Act of 2011,” and, in Connection Therewith, Making an Appropriation. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

As a result of amendments made to the federal “Unemployment Tax Act” and “Social Security Act” by the federal “Trade Adjustment Assistance Extension Act of 2011,” in order to keep Colorado’s unemployment insurance system in compliance with federal law, the bill makes the following changes to the state unemployment insurance laws:

  • Requires that employer accounts be charged when an individual is erroneously paid benefits if the overpayment occurred as a result of an employer’s failure to provide timely information and the division of unemployment insurance establishes a pattern of this behavior by the employer; and
  • Increases the penalty on fraudulent overpayments and requires 23 percent of the penalty to be deposited in the unemployment compensation fund and the remainder into the unemployment revenue fund.

On March 1, the House amended the bill and passed it on 2nd Reading; 3rd Reading is expected on Monday, March 4.

Since this summary, the bill passed Third Reading in the House.

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HB 13-1004: Establishment of Career Pathways Program to Provide Grants to Eligible Entities Such As Approved Workforce Training Programs

January 15, 2013 by Leave a Comment

On Wednesday, January 9, 2013, Rep. Crisanta Duran and Sen. Andy Kerr introduced HB 13-1004 - Concerning the Colorado Careers Act of 2013. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill establishes the career pathways program (program) in the division of employment and training (division) in the department of labor and employment. The program provides grants to eligible entities to enable individuals to acquire skills necessary to obtain or improve their employability. The bill establishes a career pathways fund and directs the division to submit an annual report to specified committees of the general assembly. The program is repealed on Jan. 31, 2016, unless the director of the division sends notice to the revisor of statues that the program has proven effective through significant job placement.

Current law authorizes enhanced unemployment insurance benefits to a claimant who is engaged in an approved training program. The bill expands the definition of “approved training program” to include an approved workforce training program provided by a nonprofit entity.

Current law requires the department of higher education (department) to produce a report on workforce needs and credential production. The bill includes local workforce investment boards in the description of entities with whom the department should consult to prepare the report.

The bill also requires the department to produce a report on the employment status of persons who have graduated from Colorado public institutions of higher education within each of the previous five years.

The bill requires the office of economic development to prepare a report on workforce needs to attract, develop, and retain businesses in Colorado and to forward the report to specified departments and committees of the general assembly. Assigned to the Business, Labor, Economic, & Workforce Development Committee.

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Spark the Discussion: Supreme Court Leaves Patients Behind

June 20, 2012 by Leave a Comment
“Spark the Discussion” is a monthly Legal Connection column highlighting the hottest trends in the emerging field of medical marijuana law. This column is brought to you by Vicente Sederberg, LLC, a full-service, community-focused medical marijuana law firm.

By Brian Vicente, Esq. and Rachelle Yeung

Jason Beinor was a street sweeper, assigned to sweep the 16th Street Mall with a broom and dustpan. He had a clean employment record, with no written reprimands or warnings. Yet he was fired from his job and disqualified from receiving unemployment benefits.

Beinor suffers from debilitating migraine headaches – a lasting, painful consequence of a prior assault. Like 96,000 other Coloradans, Beinor is a legal medical marijuana patient, and occasionally uses this substance in an off-work capacity to ameliorate his suffering. Unfortunately for Beinor, a random drug test in February 2010 tested positive for marijuana, costing him his job.

Beinor never used or possessed marijuana while on the job, and his private medical use never interfered with his job performance. However, under his employer’s zero-tolerance policy, the residual, non-psychoactive THC in Beinor’s system was considered an illegal drug, and Beinor was immediately terminated. Because Beinor believed he had been fired through no fault of his own – his marijuana had been doctor-recommended and lawfully-obtained – he filed for unemployment compensation benefits. He was denied, the Colorado Court of Appeals upheld the decision. Beinor v. Indus. Claim Appeals Office, 262 P.3d 970 (Colo. App. 2011). Recently, the Colorado Supreme Court denied to review the case.

Under Colorado statutes “[t]he presence in an individual’s system, during working hours, of not medically prescribed controlled substances” disqualifies that employee from benefits. Beinor had THC metabolites, the non-psychoactive reside of marijuana – in his system during working hours. But he thought he was safe because it had been medically recommended to him. Unfortunately, the written documentation physicians provide their patients recommending medical use of marijuana is specifically not a “prescription”. This is where federal law comes into play.

Doctors across the country must be registered with the Drug Enforcement Administration (DEA) in order to lawfully prescribe medication. However, because of marijuana’s classification as a Schedule I drug under the federal Controlled Substances Act, registered doctors cannot prescribe marijuana, but only recommend it. Indeed, their recommendations must clearly state, “[t]his assessment is not a prescription for the use of marijuana.” Thus, Beinor’s medical marijuana was considered “not medically prescribed.”

In the grand scheme of things, legal technicalities such as whether a doctor’s written recommendation is considered a “prescription” wouldn’t matter if Beinor and other patients had a constitutional right to use marijuana. However, the majority of the Colorado Court of Appeals in Beinor did not interpret Amendment 20, Colorado’s original medical marijuana law passed in 2000, to grant that right. Instead, it determined Amendment 20 only created limited exceptions to state criminal laws for patients, primary caregivers, and physicians concerning the medical use of marijuana.

The Court pointed specifically to a clause in Amendment 20 that reads: “Nothing in this section shall require any employer to accommodate the medical use of marijuana in any work place.” As Judge Gabriel, who dissented from the majority, astutely pointed out, Beinor never used marijuana in his work place, and that provision does not logically include “the presence of marijuana in one’s blood after the lawful use of medical marijuana at home.” Judge Gabriel further observes that, under such an interpretation of the law, “many patients who are eligible to use medical marijuana would likely abandon their right to do so, because even lawful use at home would put their benefits, and perhaps even their jobs, at risk.”

The majority’s decision has significantly deteriorated the rights and protections that medical marijuana patients believed they had. On a positive note, there is another case before the Colorado Supreme Court, regarding a patient whose probation was revoked due to his lawful, medical use of marijuana. If the Supreme Court grants review to that case, it may be able to begin reversing a dangerous growing trend of discrimination against medical marijuana patients, perpetuated by the Court of Appeals.

Another way to solidify the rights of patients would be the passage of Amendment 64, the Act to Regulate Marijuana Like Alcohol, which Coloradans will vote on in November. Unlike the medical marijuana amendment, whose ambiguous language left it vulnerable to manipulation, Amendment 64 clearly declares adult use of marijuana to be legal, thereby circumventing any restrictive interpretation such as was seen in the Beinor.

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

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.
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Colorado Court of Appeals: Penalty for Violation of Colorado Employment Security Act Upheld but Restitution Penalty was Abuse of Discretion

March 20, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Welliver on March 15, 2012.

Restitution—Unemployment—Penalty—Colorado Employment Security Act—Colorado Department of Labor and Employment—Due Process.

Defendant appealed the order for restitution, including a penalty imposed by the Colorado Employment Security Act (CESA). The order was affirmed in part and reversed in part, and the case was remanded with directions.

Defendant provided false information to the Colorado Department of Labor and Employment (CDLE) when he represented that he was unemployed and earned no income. Based on this conduct, defendant was charged with one count of felony theft, one count of computer crime, and one count of forgery. He was not criminally charged under the provisions of the CESA. Defendant entered into a plea agreement, and the trial court sentenced him to seven years’ probation and ordered him to pay $11,905 in restitution, including the CESA penalty.

Defendant contended that the restitution order violated his right to due process because the prosecution did not prove the amount of the alleged victim’s actual pecuniary loss by a preponderance of the evidence. Other than an objection to the penalty, defendant did not object to the amount of the CDLE’s pecuniary loss as documented in the attachments to the presentence report, which included the overpayments that were paid by the CDLE to defendant in the total amount of $7,830 and a 50% percent statutory penalty of $3,915. Accordingly, the court was justified in relying on the report to determine the amount of restitution.

Defendant also contended that the trial court erred when it included a 50% statutory penalty as restitution. The penalty authorized in CRS § 8-81-101(4)(a)(II) is to be paid into the unemployment revenue fund, which is a general fund used for such enforcement purposes, and the amount cannot be specifically attributed to defendant’s conduct. Thus, there is no evidence in the record that the amount of the penalty ($3,915) correlates in any way to the cost that the CDLE incurred to investigate and enforce the provisions of the CESA against defendant. Without such a correlation, there is no loss suffered by the CDLE that can be “reasonably calculated” under the restitution act. Accordingly, the 50% penalty was not properly included as restitution because it is not a “pecuniary loss that was suffered by” the CDLE as a “natural and probable sequence produced” by defendant’s conduct. Therefore, the trial court abused its discretion when it included the penalty as restitution.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on March 15, 2012, can be found here.

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HB 12-1120: Division of Unemployment Insurance Created

February 24, 2012 by Leave a Comment

On January 20, 2012, Rep. Keith Swertfeger and Sen. Lois Tochtrop introduced HB 12-1120 – Concerning the Creation of the Division of Unemployment Insurance in the Department of Labor and Employment to Administer the Unemployment Insurance Program. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Under current law, the Division of Employment and Training in the Department of Labor and Employment is tasked with administering both the unemployment compensation program and the work force development program within the department. The bill creates a new division of unemployment insurance (UI Division) within the Labor and Employment Department and tasks the UI division with administering the unemployment compensation program. The Employment and Training Division is relocated to a new article in the statutes and is tasked with administering the work force development program. Passed House; Assigned to Senate Business, Labor and Technology, a hearing date is not listed on the printed calendar.

Summaries of other featured bills can be found here.

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2013-05-19 12:45:22