“The federal government shouldn’t be swooping into Colorado to decide how we regulate marijuana any more than it should be swooping in to Louisiana to tell them how they should regulate fried crawfish.” – Rep. Jared Polis. Coats is a quadriplegic confined to a wheelchair. He got a medical marijuana license to treat painful muscle spasms caused by his quadriplegia. Coats consumes medical marijuana at home in accordance with Colorado law. After testing positive for THC, Defendant fired him under a zero tolerance drug policy. Coats sued because generally, an employer cannot fire “any employee due to that employee’s engaging in any lawful activity off the premises of the employer during nonworking hours.” CRS 24-34-402.5(1). The Court upheld both lower court decisions finding that “lawful” is not limited to state law. Because pot is illegal under Federal law, its use is not “lawful.”
Tag Archives: Employment
Alex J. Martinez, as Manager of Safety for the City and County of Denver, v. Denver Firefighters Local No. 858, IAFF, AFL-CIO, 2014CO15 (March 3, 2014)
“[D]iscipline exists outside the ambit of collective bargaining.” Opinion. Firefighters Union sued Denver, claiming new disciplinary rules violated its 1971 collective bargaining agreement (CBA) by altering the terms and conditions of employment. Denver argued the City Charter vested the city with the unilateral right to draft disciplinary rules. The trial court issued injunction, preventing enforcement of the new rules, and the Court of Appeals affirmed, finding the rules to be a term and condition of employment, subject to the agreement. Deciding an issue of first impression, the Colorado Supreme Court held the plain language of the City Charter expressly granted Denver the unilateral right to draft and implement disciplinary rules, and that the rules were not included in the CBA as a term or condition of employment, subject to collective bargaining.
Premier Members Federal Credit Union, v. Henry Block and South Broadway Automotive Group, Inc., d/b/a Quality Mitsubishi, Inc., v. Darrell Einspahr, 2013COA128 (Aug. 29, 2013)
If you want a jury trial, you have to pay the fee. (If you file electronically through ICCES, Colorado’s E-filing system, jury trial fees are added automatically). Here, a pro se defendant demanded a jury on his cross-claim but did not pay the jury fee. He later moved under CRCP 6 to pay out-of-time but was denied. The court of appeals affirmed. “According to the rule [CRCP 38] and the statute [CRS 13-71-144], the failure to pay the jury fee at the time of filing of the jury demand constitutes a waiver of a jury trial.” CRCP 6 does not permit a trial court to enlarge the statutory time to pay jury fees. Plaintiff’s cross-claim for indemnification was also dismissed by the trial court. The court of appeals again affirmed because “an employee-tortfeasor is barred from seeking indemnification from his vicariously liable employer when [ ] that employee knew he was engaging in wrongful conduct.”
Never date a client. Plaintiff was fired from her position for dating a client. She worked for a small nonprofit that provided clients with education, counseling, and other social services. She sued for wrongful termination, claiming that the Lawful Activities statutory exception to at-will employment protected her actions. That statute creates an exception from at-will termination for lawful off-the-job activities. An exception to that exception is that an employer may fire an employee to avoid a conflict of interest or the appearance of a conflict of interest. The court of appeals held that such conflicts are not limited to financial conflicts or conflicts that actually interfere with work. Finding the evidence sufficient to support termination, the court affirmed dismissal of plaintiff’s suit.
Despite rumors to the contrary, the use of medical marijuana is not a “lawful activity” under Colorado law; at least not under CRS 24-34-402.5, the Lawful Activities Statute protecting employees from termination for off-the-job activities. Plaintiff, a quadriplegic, is licensed to use medical marijuana. Defendant fired plaintiff after he tested positive for marijuana, which was a violation of its drug policy. The court of appeals, applying the ordinary meaning of “lawful activity” as used in section 24-34-402.5, held plaintiff’s medical marijuana use, unlawful under federal law, was not “lawful.” Although defendant defeated plaintiff’s claim, it was not entitled to attorneys’ fees pursuant to CRS 13-17-201, mandating fee awards, because the claim was not a “tort.” First, it is not an invasion of privacy tort and second, it lacks the general characteristics of a tort.
Here is a short summary of the Court’s certiorari Orders from March. See the Certiorari page and the pages for each individual Justice for more detailed information. You can also follow the links to the CLR summaries or the underlying Court of Appeals opinions provided below.
On March 18, 2012, the Colorado Supreme Court granted certiorari in one case, and denied a petition that Justice Coats would have granted.
In City of Brighton and CIRSA, v. Helen M. Rodriquez, (Court of Appeals Case No. 11CA1868), the Court granted certiorari to address issues under the Workers’ Compensation Act, CRS 8-41-301 and 8-43-201, arising from a fall that occurred during the course of an employee’s employment, but whose exact cause/mechanism was unknown, and whether the employer, who initially admitted liability for the injuries of its employee, met its burden to prove that the employee’s injuries did not arise out of the employee’s employment.
Justice Coats would have granted certiorari in McLaughlin, et. al. v. Oxley, et. al. (Court of Appeals Case No. 11CA1136) to review the district court’s denial of summary judgment under CRS 13-21-117.5.
On March 25, 2013, the Colorado Supreme Court granted certiorari in three cases, and denied a petition that Justice Eid would have granted.
In Hickerson v. Vessels (Court of Appeals Case No. 11CA317), the Court granted certiorari to address the availability of the defense of laches against a timely filed claim for collection of a promissory note, where the statute of limitations period was extended by the partial payment doctrine.
In two related cases, the Court granted certiorari to address issues arising from the determination as to whether a worker is an employee or an independent contractor when they do not provide similar services to others at the same time they are working for a putative employer: Industrial Claim Appeals Office v. Softrock Geological Services, Inc., and Colorado Division of Unemployment Insurance (Court of Appeals Case No. 11CA2331) and Western Logistics, Inc., d/b/a Diligent Delivery Systems v. Industrial Claim Appeals Office, et. al. (Court of Appeals Case No. 11CA2461). In Western Logistics, the Court also agreed to address whether the delivery drivers were subject to petitioner’s control and direction.
Justice Eid would have granted certiorari in BNSF Railway Company v. McLaughlin (Court of Appeals Case No. 11CA751) to address giving a jury instruction on apportionment of damages when the plaintiff’s preexisting condition was asymptomatic at the time of the incident.
You are either in or out. ‘Cause if you are in, you are immune – workers’ compensation 101. “Statutory employers” (SEs) have immunity from suit for injuries to employees of a contractor (workers). Under CRS-8-41-402, a property owner is an SE if “any work [is] done on and to said property [by a worker].” Here, plaintiff was a worker on defendant CF&I’s property, was injured and sued CF&I. CF&I claimed it was an SE and thus immune. The trial court agreed with CF&I because plaintiff was working “on” CF&I’s property. It also relied on an argument not raised by CF&I, and without giving plaintiff notice. The court of appeals reversed. The plain statutory language uses “and” conjunctively; thus, work must be done both “on” and “to” the property to be an SE. Further, though a trial court may grant judgment for reasons not raised by the movant, it should give notice to the nonmoving party first.
UPDATE: On January 31, 2013, the court of appeals modified its original opinion to include an entire section addressing a motion for rehearing by the Defendants. Defendant employees asserted the court should rehear the case. They argued that on remand they should not be subject to meeting a heightened standard of proof for sham litigation claims (arising from First Amendment protections for litigation activity) for their claims. They based the petition in part on the Supreme Court’s subsequent decision in General Steel Domestic Sales v. Bacheller, 2012CO68 (Nov. 27, 2012). The court denied rehearing and declined to withdraw the original opinion, holding that General Steel did not decide the issue of whether the heightened standard applied to private party disputes brought through a judicial proceeding.
“Sham litigation.” A cynic would call that phrase redundant. However, the First Amendment protects the rights of individuals to have their claims decided in civil courts, unless they are devoid of a reasonable factual basis; such claims are an abuse of process. In this case, Employer sues former Employees who allegedly started a competing business. Employees counterclaim stating the Employer’s case is an abuse of process. A jury dismisses all claims and finds in favor of defendant Employees on the counterclaim. Employer argues that because their claims went to the jury, they could not have been devoid of a reasonable factual basis, so the counterclaim should have been dismissed. The court of appeals held that the trial court erred by allowing the jury to decide the counterclaim, and remanded for the trial court to determine if Employer’s claims had a reasonable factual basis.
General Steel Domestic Sales, LLC, d/b/a General Steel Corp. et. al., v. Harold Bacheller, III, 2012CO68 (November 27, 2012)
The First Amendment does not protect purely private arbitration from abuse of process claims when arbitration is not an activity involving the government. In this case, a former Employee wins a binding arbitration against an Employer who brought a claim for violation of an employment contract. Employee sued for abuse of process, malicious prosecution, and civil conspiracy. The trial court did not instruct the jury on the heightened burden on plaintiffs to show that the arbitration lacked a reasonable factual basis on all three claims. The jury found for the Employee and the court awarded treble exemplary damages. The Supreme Court upheld both the decision not to apply the heightened standards to purely private arbitration and its discretionary decision to treble exemplary damages based on in-house counsels’ willful and wanton abuse of litigation and discovery procedures.
City of Littleton and CCMSI v. Industrial Claims Appeals Office, Julie Christ, and Michelle Parris 2012COA187 (November 1, 2012)
Radiation causes cancer; does being a firefighter also cause cancer? Causation is never that simple, as this 68 page opinion and dissent demonstrate. In this case, a firefighter gets brain cancer and claims it was related to his employment and the hazardous chemicals to which he was exposed on the job. The central issue on appeal is what evidence the fire district must present to prove that being a firefighter did not cause the cancer? In a typical toxic tort case, the burden would be on the firefighter. But in Colorado there is a special statute that shifts the burden to the employer to prove that the employment could not have caused cancer, and that it did not cause cancer in this firefighter. The court found the employers’ evidence did not meet that burden because it could not disprove the presumption that employment-related exposure to toxic substances was the source of the cancer.