April 25, 2019

Archives for October 26, 2011

Colorado State Court Administrator Issues Judicial Resource Manual for Management of Protective Proceedings

The Colorado Supreme Court has issued a new Chief Justice Directive, which was adopted and effective as of September 2011.

CJD 11-03, Protective Proceedings Policies and Procedures, directs that each court of record, including judicial officers and all Judicial Department personnel, must comply with the section of the Judicial Resource Manual containing policies and procedures for protective proceeding cases.

The Judicial Resource Manual was updated in October 2011 and was recently posted online by State Judicial. The Manual can be reviewed here.

CJD 11-03 – “Protective Proceedings Policies and Procedures.”

Judicial Resource Manual on Protective Proceedings (October 3, 2011).

Point / Counterpoint: Initiative 300 Is a Bad Law for Denver and Not What the Doctor Ordered

Editor’s Note: this Point/Counterpoint series will focus on Initiative 300, which appears on the November 2011 ballot in Denver. The initiative aims to provide paid sick and safe time for Denver workers. Click here to read Initiative 300 for yourself. The Colorado Bar Association CLE also welcomes your comments on the issue. No matter what type of law you practice or how you come down on the issue, please feel free to continue the discussion in the comments section below.

The other side of this Point/Counterpoint can be found here.

I would like to start by thanking Linda Meric for agreeing to submit a point-counterpoint to the Colorado Bar Association CLE. I have known Linda since she worked for the Service Employees International Union. We have been on opposing sides many times, and also agree on even more issues. Unfortunately when it comes to Initiative 300, the safe and sick leave proposal in Denver, it seems we find ourselves in disagreement again.

If passed, proponents would have voters believe they won’t be served by sick waiters, eat food cooked by sick chefs, or have their temperature taken by sick nurses. If you’re reading this on the Colorado Bar Association CLE’s website, you are probably an attorney. You almost certainly work in an office that offers sick leave. Yet, don’t we all know people who could stay home but come to work with every cold? Initiative 300 won’t change that.

That’s why opponents include the Colorado Hospital Initiative, which points out this law does not translate into a healthier workforce. Additional opponents include Denver Mayor Hancock, Governor Hickenlooper, the Denver Metro Chamber of Commerce, the Hispanic Chamber of Commerce of Metro Denver, the Colorado Black Chamber of Commerce, the Colorado Women’s Chamber of Commerce, and the list goes on. A detailed list is available at the No-On-300 campaign’s website.

Initiative 300 Is Bad Law

I’d like to be very clear. I know Linda and her colleagues only want what is best for Denver. As an attorney who has represented employers for 20 years, I too have tried to make our workplaces more productive, more profitable, and more secure. Even if we could afford Initiative 300 (and as I explain below, we can’t), it’s poorly drafted and invites unproductive litigation.

Employers would be required to provide a half-hour of paid “sick and safe” leave for every 30 hours worked. “Safe and sick leave” would be capped at either 72 hours (9 days) per employee per year, for employers of 10 or more people, or 40 hours (5 days) per year, for employers of fewer than 10 people.

Employees who work 40 or more hours per year in the City and County of Denver would be eligible for this new leave even if they only work part-time or temporarily. As opponents correctly point out, Initiative 300, therefore, would single out Denver employers. Only companies that employ people within Denver would be required to provide this leave. Why disadvantage Denver’s employers in this increasingly competitive environment?

Worse, in an example of the Initiative’s poor drafting, it would apply to any company that employs someone for more than 40 hours in Denver per year. A company that is located outside Denver but has people working inside Denver would trigger the law. Consider a simple pizza restaurant on the edge of Denver in, say, Aurora. This law would reach out and purports to command compliance by that company. How is that even possible legally? Even more troubling, none of the company’s other employees would be entitled to this leave, only the delivery person who accumulates more than 40 hours of work in Denver per year.

Perhaps one example of poor drafting makes the point best. Unlike any other employment law, Initiative 300 would create a legal presumption of retaliation. If a company disciplines, much less discharges, a worker within 90 days after an individual takes such leave, retaliation is presumed. Leave can be taken in as little as 1-hour increments, which means an employee can take leave frequently throughout the year. In other words, there may never be a 90+ day period of time after an employee takes leave to shield employers from this presumption.

Large employers and their counsel should not ignore Initiative 300. They may feel that since their company/client already provides paid sick leave, Initiative 300 won’t change anything. Not true. It will have a major cost even to such employers. Not only would it create this presumption of retaliation, but the initiative will require additional leave. Proposed section 28-244(a) says only that this new leave does not displace any leave policy that “is more generous than the one required herein.” The proposed Act does not define what is “more generous” or how this can be determined.

Indeed, no employer is currently offering the same levels of safe or sick leave that the Initiative would require. For example, “safe” leave is defined in section 28-237(a)(2) of Initiative 300 to include a number of things for which paid leave is not currently available at most employers, such as time “making the employee’s home secure from the perpetrator of the act of domestic abuse, stalking or sexual assault or other crime involving domestic violence or seeking new housing to escape said perpetrator.”

Likewise, section 28-237(a)(1) of Initiative 300 defines “sick” leave to include additional kinds of paid leave that are not currently available at most employers, such as time spent caring for a family member. This would effectively constitute paid FMLA leave.

San Francisco

Comparisons to San Francisco’s sick/safe leave law are incorrect. Denver’s proposed law, unlike San Francisco’s, would actually prohibit an employer from requiring documentation of the need for leave if the employee takes the leave in blocks of less than 3 consecutive days. San Francisco’s law also does not raise the “pizza delivery” problem. Lastly, San Francisco’s law allows employers and unions to collectively bargain different or even no safe/sick leave rights, unlike Denver’s.

Initiative 300 Is Just Too Costly

The costs of this initiative will be high. The City and County of Denver has calculated its costs, alone, will be $690,050. A small employer can anticipate just over $1,000 per year per employee, and an employer of 10 or more, more than twice that. Larger employers will effectively be paying the cost of one more worker for every 30 they currently employ.

Proponents concede Initiative 300 will be costly. They challenge the $690,050 estimate and recently commissioned their own analysis. Their report still ended up with an estimate of $277,179 for the cost to the City.

Whether it’s $690,050 or $277,179, the Mayor and the majority of City Council are right: It is too much at a time when the City is struggling to meet budget.

In short, Initiative 300 is a well-intentioned but poorly drafted law. It is exactly not what the doctor prescribed for Denver’s economy.

Bill C. Berger, Esq., is a shareholder at Brownstein Hyatt Farber Schreck, LLC. His practice emphasizes the representation of management and employers in labor and employment law matters, including both preventive counseling and litigation. Reach him at (303) 223-1178.

The opinions and views expressed by contributors to 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.

Point / Counterpoint: Initiative 300 Is a Good Law that Provides for a Healthier Denver

Editor’s Note: this Point/Counterpoint series will focus on Initiative 300, which appears on the November 2011 ballot in Denver. The initiative aims to provide paid sick and safe time for Denver workers. Click here to read Initiative 300 for yourself. The Colorado Bar Association CLE also welcomes your comments on the issue. No matter what type of law you practice or how you come down on the issue, please feel free to continue the discussion in the comments section below.

The other side of this Point/Counterpoint can be found here.

Denver voters have the opportunity to make Denver a healthier place to live, stabilize working families, make businesses more productive, and strengthen the local economy by supporting Initiative 300. This measure will allow all workers employed in Denver to earn paid sick days to care for themselves or a family member when sick without jeopardizing their financial security.

Paid sick days will make Denver a healthier place to live and work.

There are 107,000 lower-wage workers in Denver who don’t have access to paid sick days – most have lots of interaction with the public at their jobs in restaurants, childcare centers, and nursing homes – and that puts everyone’s health at risk.   When they’re sick, they have to choose whether to go to work sick and risk spreading contagion or struggle paying the bills at the end of the month.  Especially in this tough economy, that’s a choice no one can afford to make.

Three out of four restaurant workers in Denver have no paid sick days and face this decision every time they get sick.  Laura, a Denver coffeeshop barista, knows she shouldn’t have reported to work with a severe cold last winter, but she did anyway to pay that month’s rent.  And Laura isn’t alone.  A national survey of restaurant workers found that nearly two-thirds have cooked or served food while sick, and that’s unhealthy for them and their co-workers – and you, their customers.

When workers are able to earn paid sick days, it makes a healthier community for all of us to live in. That’s why more than 160 Colorado public health groups, faith leaders, community organizations, labor groups, elected officials, and businesses are asking Denver voters to support Initiative 300.

Paid sick days make working families more secure.

Workers can take care of themselves, get preventive care, and help their children and other family members recuperate when they’re sick.  With paid sick days, workers don’t have to choose between being good employees and good parents.

Stronger, more secure families mean better schools for our children.  Parents with paid sick days are less likely to send a sick child to school.  When their parents are able to care for them at home, sick children get well sooner and reduce the risk of spreading illness to their classmates and teachers.  And they do better in school.

Paid sick days are good for businesses.

Businesses benefit because paid sick days decrease the spread of illness in the workplace, increase worker productivity, and protect customers, far outweighing the modest cost of implementing the policy.  In fact, paid sick days will save Denver businesses nearly $600 per year for each full-time worker by improving productivity and reducing turnover.

Paid sick days strengthen the economy by helping workers keep their jobs.

Economists say that job retention policies like paid sick days help reduce unemployment and strengthen the economy.  In San Francisco, which adopted a similar paid sick days law in 2007, two in three businesses now support the law; six in seven report no negative impact on profitability – including the restaurant association which at first opposed the law.  Since then, job growth in San Francisco has outpaced surrounding counties and the city was just named one of the top three in the world to do business.

Initiative 300 is easy to implement.

Business lobbyists have a long list of complaints about Initiative 300 – not one of which has been a problem in other cities with similar laws.  Paid sick days laws have passed legal scrutiny and challenge, and have proven easy to implement, easy to track, and haven’t led to problems for employers.

Some specific legal points about Initiative 300, which is patterned on laws passed in other cities:

  • Ordinance enforcement is in the Agency for Human Rights and Community Relations because it ALREADY has authority to conduct all aspects of enforcement – taking complaints, conducting investigations, holding hearings, providing conciliation, issuing orders, and imposing fines.
  • Municipal laws routinely apply to all businesses doing business within a city.  Initiative 300EXCLUDES employees working less than 40 hours in Denver, those with just a casual connection to the city.  This provision was added to protect business on the advice of those implementing San Francisco’s law, which also exempts workers with minimal contact with the city through regulation.
  • The commonplace 90-day non-retaliation protection ONLY applies to process, protecting those using legal remedies or cooperating with legal procedures.
  • Initiative 300 is clear that leave already provided by employers counts for purposes of the ordinance, as long as the leave is the same amount, and can be used for the same purposes.
  • State law already requires employers to offer unpaid leave for domestic violence reasons.  Under Initiative 300, employees can use paid time they accrue to get safe, but the ordinance doesn’t add leave for those purposes.
  • Initiative 300, like San Francisco regulations and other paid sick days laws, allows employers to require documentation after absences of 3 days.
  • Initiative 300, like the San Francisco and most other paid sick days laws, allows employers and unions to do something different or opt out of the ordinance through collective bargaining.
  • Nothing in Initiative 300 prevents employers from requiring employees to call in when sick, disciplining bad employees, or allowing shift-swapping.

The benefits of paid sick days far outweigh the cost.

The modest city investment – estimated by independent analysts at $277,000 – to implement Initiative 300 is small compared to the costs of not having paid sick days, including public health costs of sick workers on the job, increased emergency room usage, increased public assistance costs, and educational costs.

Who wants workers to be forced to work sick and spread contagion while they’re cooking and serving our food in restaurants, and taking care of our children and grandparents in schools, child care centers, and nursing homes?  Initiative 300 will make Denver a healthier city for all of us.

Linda Meric is the Denver-based Executive Director of 9to5, National Association of Working Women, a membership organization of low-wage women working to improve policy on workplace issues. 9to5 Colorado is one of the 160+ organizations in the Campaign for a Healthy Denver. Click here for more information.

The opinions and views expressed by contributors to 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.

Tenth Circuit: Unpublished Opinions, 10/25/11

On Tuesday, October 25, 2011, the Tenth Circuit Court of Appeals issued no published opinions and six unpublished opinions.

Unpublished

Miller v. Arbogast

United States v. Dewitt

Miller, Jr. v. Trammell

United States v. Strasser

United States v. Rodriguez-Padilla

United States v. Ragland

No case summaries are available for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.