April 20, 2019

Archives for March 8, 2013

Social Media Policies: Permissible Employer Regulation

Joel Jacobson_pictureBy Joel Jacobson

Social media use is rapidly increasing and has become central to the workforce. Employers recognize that public information posted online is useful for monitoring employee activity and the portrayal of the company. However, new technologies result in unintended, legal consequences. Recently, an Applebee’s waitress was terminated after posting a customer’s receipt on reddit and the SEC warned Netflix’s CEO that his Facebook post might trigger securities regulations. Colorado attorneys should pay attention to legal developments within the social media context because the appropriate level of employer regulation of employee social media use remains unsettled.

Many laws are potentially implicated when an employer improperly regulates or misuses information from social networking sites. Notably, Anti-Discrimination laws (ADA, Title VII, ADEA), Stored Communications Act, National Labor Relations Act (protecting concerted activities for the purpose of collective bargaining or other mutual aid or protection), Lawful Off-Duty Conduct, and common law privacy claims should be considered. Recent decisions have targeted social media policies that are wide sweeping and impinge on protected employee action. In fact, rulings by the NLRB led large, publicly traded companies including GM, Target, and Costco to rewrite their social media policies.

The chairman of the NLRB explains that social media is the “new water cooler” and that current government regulation results from “applying traditional rules to new technology.” Application of the traditional rules takes place on a case-by-case basis and the NLRB found it permissible to terminate a single employee whose internet posts harmed the company and had no relation to protected activity. Workers have the right to talk with each other for the goal of improving pay, benefits, and working conditions. As such, social media policies should be revisited to determine whether they are too restrictive. Courts will look to company policies, procedures, and conduct so it is essential that Colorado attorneys help draft guidelines tailored to accomplish a specific, lawful end.

Employers will continue to turn to lawyers for guidance in this developing area of law. To this end, Colorado lawyers should know that employers must not access employee, online information by deceitful means. Also, common law privacy claims can be addressed with a written policy that defeats an employee’s reasonable expectation of privacy. Finally, a savings clause in a social media policy can explicitly state that the policy is not meant to prevent employees from engaging in protected, concerted activity.

Joel Jacobson is a Contracts and Operations Associate with H.B. Stubbs Company, LCC – a national design and fabrication firm headquartered near Detroit, MI for exhibits displayed by technology and automotive companies. He focuses on contracts, employment law, and a variety of non-legal business issues. Joel serves on the Executive Council of the Denver Bar Association Young Lawyers Division and has an interest in topics impacting start-up companies in the Denver entrepreneurial community. He can be reached by email at jmjacobson1@gmail.com or on Twitter @J_m_Jacobson.

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.

Legal Community Mourns the Loss of Claudia Miller

Colorado’s legal community suffered a tragic loss Tuesday when Claudia Miller, a family law attorney from Lakewood, was found murdered in her office. Claudia’s practice focused on domestic relations, juvenile law, adoptions, and estate planning. She was active in the CBA’s Family Law Section and in the First Judicial District Bar Association.

The Family Law Section issued a statement on Thursday, March 7, noting “Claudia was a very able and extremely professional attorney whose clients will sadly miss her as well. Her loss is tremendous, both on a personal and a professional level. . . . Claudia was one of our best and she will be sorely missed.”

The First Judicial District Bar Association is planning a memorial service, although details have not yet been released.

It is unknown whether Claudia’s death was related to her practice. Surveillance videos captured images of a person using her credit cards; the images are available here. Anyone with information about the case is urged to contact Crime Stoppers at (720) 913-7867.

Colorado Court of Appeals: “Portion” Language in CCIOA Determined To Be Unambiguous; 18% Interest on Attorney Fee Award Upheld

The Colorado Court of Appeals issued its opinion in Vista Ridge Master Homeowners Association, Inc. v. Arcadia Holdings at Vista Ridge, LLC on Thursday, February 28, 2013.

Summary Judgment—CRS § 38-33.3-210(4)(b)—Withdrawal and De-annexation of Lots From a Master Association—Interest on Attorney Fees.

Defendant Arcadia Holdings at Vista Ridge, LLC (Arcadia) appealed the summary judgment in favor of plaintiff Vista Ridge Master Homeowners Association, Inc. (Vista Ridge).The judgment was affirmed and the case was remanded with directions.

Vista Ridge was established by the recording of the Master Declaration of Covenants, Conditions, and Restrictions for Vista Ridge (Declaration). Article V of the Declaration reserved the right to withdraw or de-annex any portion of the community in accordance with the Colorado Common Interest Ownership Act (CCIOA). The Declaration limited this right to the extent that “no portion of the Property may be withdrawn or deannexed after a Lot or Unit in that portion of the Property has been conveyed to an Owner other than a Declarant or a Builder.”

Arcadia’s predecessor in interest recorded Vista Ridge Filing No. 9, which platted ninety-four single family residential lots. They were annexed to Vista Ridge by the recording of a Declaration of Annexation and Amendment to the Declaration (Declaration of Annexation). At the time of this action, Arcadia still owned seventy of these lots. Arcadia recorded an Amendment to the Declaration of Covenants, Conditions, and Restrictions for Vista Ridge in which it purported to withdraw and de-annex its remaining seventy lots. Vista Ridge challenged the de-annexation in a complaint for declaratory judgment and damages. The district court granted summary judgment in favor of Vista Ridge and entered a monetary judgment for past-due monthly assessments on the seventy lots plus attorney fees, all accruing interest at an annual rate of 19%.

Arcadia argued it was error to find the de-annexation invalid, and the Court of Appeals disagreed. The Court found CCIOA determinative on this issue. The applicable subsection is 210(4)(b), which states, “[i]f any portion of the real estate is subject to withdrawal, it may not be withdrawn after a unit in that portion has been conveyed to a purchaser.” The parties disagreed as to the meaning of “portion.” Vista Ridge contended it meant the ninety-four lots in Filing No. 9, and Arcadia contended the meaning was arbitrary and the statute ambiguous. The Court found it clear and unambiguous. Filing No. 9 was clearly a separate portion of Vista Ridge. Therefore, following the sale of one of the ninety-four lots constituting Filing No. 9, that portion may not be withdrawn. The relevant portion was the ninety-four lots.

Arcadia also argued it was error to order a monetary judgment that accrued interest on the attorney fees award at a rate of 18% percent. The Court disagreed. Section 7.6 of the Declaration stated that “[a]ny assessment not paid [is] subject to fees authorized by Section 7.2, including . . . interest from the due date at the rate of eighteen percent (18%) per annum.” Attorney fees are referred to in the Declaration as “assessments” three times; therefore, they are considered a type of assessment.

The judgment was affirmed. In addition, pursuant to § 38-33.3-123(1)(c) and the Declaration, Vista Ridge was entitled to recover its appellate attorney fees and costs.

Summary and full case available here.

Colorado Court of Appeals: Issue Preclusion Does Not Bar Action of Insurer To Prove It Was Not Liable for Actions of Insured

The Colorado Court of Appeals issued its opinion in Shelter Mutual Insurance Co. v. Vaughn on Thursday, March 28, 2013.

Personal Injury—Intentional Acts Exclusion to Insurance—Issue Preclusion.

At a YMCA basketball game, Steven Vaughn, the father of a player, hit Alvin Miller, a referee, several times and injured him. Miller sued Vaughn for assault and battery. Shelter Mutual Insurance Company (Shelter) hired a lawyer to defend Vaughn under a reservation of rights. Miller amended his complaint to add a negligence claim. The assault and battery claim was dropped before trial. The jury found Vaughn negligent and awarded Miller damages.

Shelter filed a declaratory action, asserting that Vaughn’s intentional actions caused Miller’s injuries and therefore the judgment was not covered by Vaughn’s insurance policy. Vaughn argued that Shelter was precluded from claiming he acted intentionally given the jury verdict of negligence. The trial court disagreed, finding that the issue of whether Vaughn acted intentionally was not adjudicated at trial and Shelter’s interest was not identical to Vaughn’s. The court then found Vaughn’s actions were intentional and thus excluded under the policy. Only the ruling on issue preclusion was challenged on appeal.

Issue preclusion bars relitigation of issues actually litigated in and necessary to the outcome of a prior action. Of the four elements that must be proven, the Court of Appeals found two that were not. The Court found that Shelter was not in privity with Vaughn in the underlying trial. Although Shelter funded Vaughn’s defense, it was not a party to the litigation and its interests were not aligned with Vaughn’s. Vaughn wanted to deny all liability, but Shelter only wanted to prove that if Vaughn were liable, it was for intentional acts that would release it from its duty to indemnify. Shelter’s reservation of rights put Vaughn on notice of their divergent interests. The Court further held that Shelter did not have a full and fair opportunity to assert its own interests in the underlying trial and litigate the issue of whether Vaughn was negligent. Shelter’s interests conflicted with Vaughn’s interest.

In sum, issue preclusion will not bar an insurer from later denying coverage to its insured when the insurer defended the insured under a reservation of rights and the insurer had an interest in establishing a different set of facts than the insured in the underlying litigation. The judgment was affirmed.

Summary and full case available here.

Tenth Circuit: Unpublished Opinions, 3/7/13

On Thursday, March 7, 2013, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

United States v. Mowery

CSG Workforce Partners, LLC v. Watson

Cook v. Baca

Harris v. Johnson

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

Colorado Court of Appeals: Announcement Sheet, 3/7/13

On Thursday, March 7, 2013, the Colorado Court of Appeals issued no published opinions and 33 unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

SB 13-161: Continuing the State Board of Licensure of Architects, Professional Engineers, and Professional Land Surveyors

On Monday, February 4, 2013, Sen. Rollie Heath introduced SB 13-161 – Concerning Continuation of the State Board for Licensure of Architects, Professional Engineers, and Professional Land Surveyors, and, in Connection Therewith, Implementing the Recommendations of the 2012 Sunset Report by the Department of Regulatory Agencies. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill implements the recommendations of the sunset review and report on the state board for licensure of architects, professional engineers, and professional land surveyors (board) by:

  • Extending the repeal date of the board for 11 years, until Sept. 1, 2024;
  • Allowing professional engineers and land surveyors licensed in other states to advertise in Colorado, subject to the requirement to obtain a Colorado license before providing services here;
  • Clarifying what constitutes an “offer” to practice one of the professions;
  • Repealing the ownership requirements for performing services on behalf of a firm;
  • Requiring architects to report to the board any malpractice claim that is settled or reduced to judgment, under the same conditions as apply to engineers and land surveyors;
  • Removing “mental incompetency” from the grounds for discipline of architects and revising references to drug and alcohol use in all three practice acts;
  • Clarifying that an improvement location certificate is valid only for use by a specified client and reflects the condition of property only as of a specified date;
  • Repealing the requirement that letters of admonition be sent by certified mail;
  • Updating the requirements for stamping and sealing of documents and giving the board regulatory authority to define retention and copying requirements for sealed documents;
  • Eliminating the obsolete and undefined term “survey point;”
  • Requiring licensees to update their contact information on file with the board within 30 days after any change;
  • Extending title protection to derivatives of the word “architect;” and
  • Making fining provisions consistent among the three practice acts.

The bill also makes technical amendments to update the governing statutes. The bill is assigned to the Business, Labor, & Technology Committee.

Since this summary, the Business, Labor, & Technology Commitee referred the bill, amended, to the Senate Committee of the Whole.

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

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.

SB 13-166: Developing Standardized Rules for Use in Processing Medical Claims

On Thursday, February 7, 2013, Sen. Irene Aguilar introduced SB 13-166 – Concerning the Development of Standardized Rules for Use in Processing Medical Claims, and, in Connection Therewith, Extending the Deadlines for Development and Implementation of the Standardized Rules, Authorizing an Appropriation of State Moneys to Help Fund the Development of the Rules, and Making an Appropriation. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

In 2010, the Department of Health Care Policy and Financing (department) was charged with creating a task force to help develop a standardized set of payment rules and claim edits for use by health care providers and payers in the processing of medical claims. The task force is to submit a final report and recommendations concerning the standardized set by Dec. 31, 2013. Commercial health plans are then required to implement the standardized set by Jan. 1, 2015, or according to a schedule outlined by the task force, and domestic, nonprofit health plans must implement the standards by Jan. 1, 2016. The bill extends each of those deadlines by one year.

Additionally, under current law, the task force, through an organization designated by the executive director of the department, is allowed to seek and accept monetary and in-kind gifts, grants, and donations to use in performing its functions. No state funds have been appropriated to fund the work of the task force.

The bill authorizes the general assembly to appropriate moneys, and appropriates $100,000 from the general fund, to the department for use by the task force in performing its functions. On Feb. 20, the Health & Human Services Committee approved the bill and sent it to the Appropriations Committee for consideration of the fiscal impact.