July 21, 2018

Archives for March 10, 2014

Workplace Privacy To Be Discussed at Employment Law 2014 Conference in March

One of the hot-topic issues for employment law today is workplace privacy. Qusair Mohamedbhai, a leading Colorado employment law attorney, and Philip Gordon, a leading privacy attorney who focuses on HR privacy issues, will tackle this complex and rapidly evolving area of the law at the CBA-CLE 2014 Employment Law Conference on March 20-21. Expect a lively and informative discussion including critical privacy and information security issues raised by the “Bring Your Own Device” (BYOD) movement and how recent state laws and EEOC guidelines can impact workplace privacy policies involving background checks, especially the use of an employees’ criminal history for employment purposes, and access to employees’ personal social media. Below are excerpts from their upcoming presentation.

Workplace Privacy:
“In the coming year, employers may expect to see more restrictions on access to applicants’ and employees’ criminal history, credit information, and personal social media content.  To further complicate the challenges of addressing privacy in the workplace, employers will be required to grapple with next-generation issues raised by the use of social media as a business tool and the increasing adoption of “bring-your-own-device” (BYOD) programs.  The ever-shifting balance between employer prerogative and employee privacy likely will continue to move in a direction that favors employee privacy.” –  Philip L. Gordon, Littler Mendelson

Workplace Privacy: Criminal Background Checks & Victims of Crimes:
2012 EEOC Guidance on Arrest and Conviction Records in Employment Decisions: For criminal conduct exclusions in hiring practices that are alleged to have an unlawful disparate impact, relevant information includes the text of the policy or practice, associated documentation, and information about how the policy or practice was actually implemented. For example, the EEOC may look for offenses or classes of offenses that were reported to the employer (all felonies, all drug offenses) or how far back in time the report reached. 2012 WL1499883 § V (E.E.O.C. Guidance Apr. 25, 2012). – Qusair Mohamedbhai, RATHOD ǀ MOHAMEDBHAI LLC

CLE Program: Employment Law 2014

This CLE presentation will take place on March 20-21, 2014. Click here to register for the live program. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here — MP3 audio downloadVideo OnDemandCD homestudy

Bills Regarding Water Projects, Collector Vehicle Emissions, and Official State Cactus Signed by Governor

claret cup cactusOn Friday, March 7, 2014, Governor Hickenlooper signed six bills and a joint resolution into law. These include bills to name the Claret Cup Cactus as the official state cactus; collection of restitution as part of a deferred judgment; emissions inspections for collector vehicles; and publication of legal notices on a statewide website maintained by a majority of Colorado newspapers. All seven bills are summarized here.

  • SJR 14-004 – Concerning Approval of Water Project Revolving Fund Eligibility Lists Administered by the Colorado Water Resources and Power Development Authority, by Sen. Gail Schwartz and Rep. Randy Fischer. This joint resolution modifies the Drinking Water Project Eligibility List and Water Pollution Control Project Eligibility List by adding, modifying, and removing projects.
  • HB 14-1024 – Concerning the Designation of the Claret Cup Cactus as the State Cactus, by Rep. Carole Murray and Sen. Gail Schwartz. The bill designates the claret cup cactus as the official state cactus.
  • HB 14-1035 – Concerning Collection of Restitution Ordered Pursuant to a Deferred Judgment, by Rep. Bob Gardner and Sen. Mike Johnston. The bill clarifies that a court can collect restitution until the restitution is paid, even after the deferred judgment is dismissed.
  • HB 14-1056 – Concerning Clarification of the Statutes Relating to the Registration of Collector’s Item Motor Vehicles to Specify that Certain Special Emission Inspection Requirements for Collector’s Item Motor Vehicles Registered Prior to the Enactment of HB 13-1071 Continue to Apply to Those Vehicles Until they are Transferred, by Rep. Chris Holbert and Sen. Lois Tochtrop. The bill clarifies that emissions requirements continue to apply to vehicles registered before Sept. 1, 2009, until the vehicles are transferred to new owners.
  • HB 14-1059 – Concerning Clarifying that the Ritual Discharge of Blank Ammunition Cartridges at a Military Funeral Does Not Constitute the Criminal Offense of Disorderly Conduct, by Rep. Leroy Garcia and Sen. Larry Crowder. The bill clarifies that routine discharge of firearms at military funerals does not qualify as a Class 2 misdemeanor.
  • HB 14-1086 – Concerning a Requirement that a Legal Notice Published in a Newspaper is Also Published on a Statewide Web Site Maintained by a Majority of Colorado Newspapers, by Rep. Carole Murray and Sen. Matt Jones. The bill requires newspapers publishing a legal notice to also include the notice on a certain website at no additional charge.
  • HB 14-1111 – Concerning the Authority for a Municipal Volunteer Firefighter Department Retiree to Serve on a Municipal Volunteer Firefighter Pension Board, by Rep. Mike Foote and Sen. Mary Hodge. The bill authorizes municipalities that maintain a volunteer firefighter pension plan to include retired and active volunteer firefighters on the plan’s board of trustees.

To date, Governor Hickenlooper has signed 42 bills and resolutions in this 2014 Legislative Session. For a complete list of the governor’s legislative decisions, click here.

Tenth Circuit: Petition for Review of Black Lung Benefits Act Award Denied

The Tenth Circuit Court of Appeals published its opinion in Antelope Coal Co./Rio Tinto Energy America v. Goodin on Monday, March 3, 2014.

Rolland E. Goodin worked at surface coal mines for 25 years and smoked cigarettes for more than 40 years. He developed a respiratory condition and filed for benefits under the Black Lung Benefits Act (“BLBA”). An Administrative Law Judge (“ALJ”) awarded Goodin benefits. His employer, Antelope Coal Company/Rio Tinto Energy America (“Antelope”), appealed, and the Department of Labor Benefits Review Board (“Review Board”) affirmed the grant of benefits. Antelope filed this petition for review of the Review Board’s order.

Antelope’s primary argument was that the ALJ wrongly limited its options to rebut a regulatory presumption that Goodin’s work as a coal miner caused his respiratory condition. It argued 20 C.F.R. § 718.305(d), a rule limiting the type of evidence that may be used for rebuttal, should not apply to coal mine operators like Antelope.

The Tenth Circuit first held that to rebut the presumption that a coal miner is disabled under the BLBA due to a respiratory or pulmonary condition when he has worked for 15 years in underground coal mines or substantially similar conditions, the employer must rule out any relationship between the disability and the coal mine employment. This is known as the “rule-out standard.” The second method to rebut the presumption is to prove the claimant does not have the lung condition pneumoconiosis.

The court held there was substantial evidence to support the ALJ’s conclusion that Antelope failed to rebut the presumption under either method and that the ALJ had not limited Antelope’s rebuttal evidence. It found Antelope’s remaining arguments lacked merit. The court denied Antelope’s petition for review.

Tenth Circuit: Wire and Mail Fraud and Identity Theft Convictions Affirmed

The Tenth Circuit Court of Appeals published its opinion in United States v. Porter on Thursday, March 6, 2014.

Following a jury trial, Defendant-Appellant Gloria Porter was convicted of 105 counts of wire fraud, one count of mail fraud, and one count of identity theft. The National Federation of Federal Employees (“NFFE”) is an independent federal union that represents federal workers. The NFFE is comprised of five councils, which in turn are made up of approximately two hundred “locals.” Porter joined the NFFE in 1992. She was a member of Local 2049 at White Sands and served as its president. She also served as secretary/treasurer of the Armed Material Command (“AMC”) Council (one of the NFFE’s five councils) and as national vice president of the NFFE. She was secretary/treasurer of the AMC Council from 2002 to 2008, and was the only active signatory on the AMC Council’s bank account.

Starting in August 2004 and throughout her time as an NFFE officer, Porter created fraudulent bank statements on her computer and sent them to NFFE officers, while having the authentic bank statements sent to her home address. The NFFE took away Porter’s authority over the union’s bank account, and, after both the NFFE and IAM conducted their own audits of their accounts, the matter was turned over to the United States Department of Labor (“DOL”) for further investigation.

Porter appealed her convictions, claiming that the district court erred by instructing the jury that a signature is a “means of identification” for purposes of the aggravated identity theft offense. Porter argued that the word “signature” is not expressly mentioned in the statutory definition of “means of identification” found in § 1028(d)(7) and a signature should not be viewed as a form of a “name”—a term that does appear in that definition. The Tenth Circuit found the reasoning of a Ninth Circuit case, Blixt, persuasive in holding that a signature is a form of “name” for purposes of § 1028(d)(7)’s definition of “means of identification.”

Porter also argued that the evidence was insufficient to support her convictions for wire fraud and mail fraud. The court found her arguments to be without merit and affirmed her convictions.

Tenth Circuit: Fourth Amendment Seizure Requires Submission to Authority

The Tenth Circuit Court of Appeals published its opinion in United States v. Mosley on Monday, March 3, 2014.

Defendant Jermaine Mosley entered a conditional guilty plea to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He appealed the district court’s denial of his motion to suppress the gun that was the basis of this offense. Mosley was arrested after police received an anonymous tip at 3 a.m. that two men were handling a gun in a car in a parking lot that had been the scene of shootings and other crimes in the past. He was the passenger in the car and refused to comply with police commands. After removing him from the vehicle, police found a gun under his seat.

Because Mosley did not have a possessory or property interest in the vehicle in which the gun was found, he lacked standing to challenge the search of the vehicle directly but did have standing to contest the lawfulness of his own seizure and seek to suppress the gun as the fruit of that seizure.

The Tenth Circuit held that Mosley did not submit to the officers’ show of authority, and therefore was not “seized” within the meaning of the Fourth Amendment, until he manifested compliance with the officers’ orders—when he finally put his hands up. Therefore, by the time Mosley put his hands up and was actually seized, the totality of the circumstances gave rise to reasonable suspicion justifying a Terry stop. Mosley had made furtive movements consistent with hiding or retrieving a gun, in addition to the other factors related above. The fact that the officers approached the car with guns drawn did not rise to the level of a de facto arrest and Mosley was not seized in violation of his Fourth Amendment rights. The court affirmed the district court’s denial of Mosley’s motion to suppress the gun.