Legislative Snippets Page 1 of 12

A Note from Lara… Welcome to the latest edition of Legislative Snippets! This edition has news on the elections, legislation updates,

health care reform, court cases and other interesting snippets for you to put on your radar as well as in your legislative/legal toolkit.

Enjoy!

Lara

Colorado Ballot Measures Amendment 67 – Definition of Person and Child An amendment to the Colorado constitution protecting pregnant women and unborn children by defining "person" and "child" in the Colorado criminal code and the Colorado wrongful death act to include unborn human beings. Registered Issue Committees Favor: Oppose: A Voice For Brady No On Personhood - Vote No 67 Campaign Rosalinda Lozano Committee 3401 Quebec Street, Suite 1000 Cathy Alderman Denver, CO 80207 7155 East 38th Avenue 303-456-2800 Denver, CO 80203 303-813-7645 Colorado Right to Life Susan Sutherland 3401 Quebec Street, Suite 10300 Denver, CO 80207 303-753-9394 Personhood Colorado Donna Ballentine 8795 Ralston Road, Suite 220 Arvada, CO 80002 Amendment 68 – Horse Racetrack Limited Gaming Proceeds for K-12 Education Shall state taxes be increased $114,500,000 annually in the first full fiscal year, and by such amounts that are raised thereafter, by imposing a new tax on authorized horse racetracks’ adjusted gross proceeds from limited gaming to increase statewide funding for K-12 education, and in connection therewith, amending the Colorado constitution to permit limited gaming in addition to pre-existing pari-mutuel wagering at one qualified horse racetrack in each of the counties of Arapahoe, Mesa, and Pueblo; authorizing host communities to impose impact fees on horse racetracks authorized to conduct limited gaming; allowing all resulting revenue to be collected and spent notwithstanding any limitations provided by law; and allocating the resulting tax revenues to a fund to be distributed to school districts and the charter school institute for K-12 education?

Registered Issue Committees Favor: Oppose: Coloradans For Better Schools, Inc Don’t Turn Racetracks Into Casinos Katie Kennedy Lois A. Rice 1099 18th Street, Suite 2150 1717 Downing Street Denver, CO 80202 Denver, CO 80218 719-369-2266 303-839-8373

Aug - Oct 2014

Volume 3, Issue 3

Legislative Snippets Special Interest Articles: Colorado Ballot

Measures

Election Information

Presidential Orders

Same-Sex Marriage

Coats v DISH

In Every Issue: Legislation 3

HealthCare Reform 4

Advocacy 5

OFCCP News 5

NLRB News 6

EEOC News 6

OSHA News 6

OFCCP News 6

USCIS News 7

VETS News 7

Education 7

Cases 9

CO Legal Updates 10

SHRManswers 11

Back Page Extras 12

Legislative Snippets Page 2 of 12 Proposition 104 – School Board Open Meetings A change to the Colorado Revised Statutes requiring any meeting of a board of education, or any meeting between any representative of a school district and any representative of employees, at which a collective bargaining agreement is discussed to be open to the public. Registered Issue Committees Favor: Oppose: Sunshine On Government Local Schools, Local Choices Mike Krause Kathrine Stigberg 727 E. 16th Avenue 422 21st Street, Suite G Denver, CO 80203 Denver, CO 80205 303-279-6536 303-297-1660 Proposition 105 – Labeling Genetically Modified Food A change to the Colorado Revised Statutes concerning labeling of genetically modified food; and, in connection therewith, requiring food that has been genetically modified or treated with genetically modified material to be labeled, "Produced With Genetic Engineering" starting on July 1, 2016; exempting some foods including but not limited to food from animals that are not genetically modified but have been fed or injected with genetically modified food or drugs, certain food that is not packaged for retail sale and is intended for immediate human consumption, alcoholic beverages, food for animals, and medically prescribed food; requiring the Colorado department of public health and environment to regulate the labeling of genetically modified food; and specifying that no private right of action is created for failure to conform to the labeling requirements. Registered Issue Committees Favor: Oppose: Right to Know Colorado GMO Coalition Against The Misleading Labeling Initiative Larry Sheva Cooper Bethany Gravell 7401 W. 59th Avenue 1999 Broadway Street, Suite 4190 Arvada, CO 80003 Denver, CO 80202 303-289-1034 303-534-4399 Sierra Club Issue Committee David Mastronarde 1536 Wynkoop Street, Suite 4C Denver, CO 80202 303-861-8819

Colorado Major Election Candidates Governor U.S. Senate John Hickenlooper Mark Udall Bob Beauprez Cory Gardner U.S. House District 1: Diana DeGette District 5: Irv Halter Martin Walsh Doug Lamborn District 2: Jared Polis District 6: Mike Coffman George Leing Andrew Romanoff District 3: Scott Tipton District 7: Ed Perlmutter

Abel Tapia Don Ytterberg District 4: Vic Meyers Ken Buck

Elections – Get Involved! As you can see, every one of our U.S. House Representatives and one of our U.S. Senators are up for election. This is a great way for YOU to get involved! You can volunteer to make calls and knock on doors as well as put a sign in your yard for the candidate you support. These efforts will yield returns if your candidate is elected as you will have a great foundation to refer to when you need to bend their ear on an employment issue later. So, use this great opportunity to get involved and start building great relationships!

Legislative Snippets Page 3 of 12 National Legislation & News

Presidential Order Protects LGBT Workers at Federal Contractors SHRM reports: Federal contractors are now prohibited from discriminating against workers and job applicants based on sexual orientation, under an executive order that President Barack Obama signed July 21, 2014. The order could bring new requirements for employers to follow. Click here to read more.

President Issues Order Requiring Contractors to Disclose Labor Law Violations When Competing for Federal Contracts SHRM reports: President Obama signed yet another executive order impacting federal contractors. In short, the order will require prospective federal contractors to disclose all labor law violations, including federal and equivalent state laws

addressing wage and hour, safety, collective bargaining, family and medical leave, and civil rights protections, from the past three years before they can receive a contract. Contracting officials will be heavily advised to not contract with employers with “repeat violations.” Click here to read more. Final Rule Released for Federal Contractor Minimum Wage

SHRM reports: In the continuing saga of new requirements for federal contractors, the U.S. Department of Labor on Oct. 1, 2014, issued a final rule implementing a Feb. 12, 2014, executive order to raise the minimum wage for workers on federal service and construction contracts from $7.25 to $10.10 per hour. Click here to read more.

Workforce Innovation and Opportunity Act President Barack Obama signed the Workforce Innovation and Opportunity Act (WIOA) into law on July 22, 2014. WIOA is designed to help job seekers access employment, education, training, and support services to succeed in the labor market and to match employers with the skilled workers they need to compete in the global economy. Congress passed the Act by a wide bipartisan

majority; it is the first legislative reform in 15 years of the public workforce system. Every year the key programs that form the pillars of WIOA help tens of millions of job seekers and workers to connect to good jobs and acquire the skills and credentials needed to obtain them. The enactment of WIOA provides opportunity for reforms to ensure the

American Job Center system is job-driven—responding to the needs of employers and preparing workers for jobs that are available now and in the future. WIOA supersedes the Workforce Investment Act of 1998 and amends the Adult Education and Family Literacy Act, the Wagner-Peyser Act, and the Rehabilitation Act of 1973. In general, the Act takes

effect on July 1, 2015, the first full program year after enactment, unless otherwise noted. The U.S. Department of Labor (DOL) will issue further guidance on the timeframes for implementation of these changes and proposed regulations reflecting the changes in WIOA soon after enactment. Click here to read more.

State Legislation Employers Beware: Two New Laws Impacting Companies of All Sizes in Colorado Dufford & Brown, P.C. reports: Colorado employers need to be prepared for two new laws going into effect on January 1, 2015. One law will make significant changes to the process under which employees make claims for unpaid wages. The second law expands the remedies available to employees working at companies with fewer than 15 employees who claim to be victims of discrimination. Because both of these laws could result in increased liability for employers of all sizes,

precautions should be taken to minimize liability. Effective January 1, 2015, employees claiming they have not been paid all the wages they are owed (up to $7,500) will be able to file a complaint with the Colorado Department of Labor & Employment. The CDLE will send a notice of the complaint to the employer and, absent good cause for an extension of time, will give the employer just 14 days to pay the employee the amount demanded or submit a written response explaining why the

wages are not owed to the employee. If the CDLE determines wages are owed to the employee, it will require the employer to pay the amount owed, plus penalties up to 125% of the amount owed, and fines. Additionally, if the CDLE's determination is not appealed, it can be filed with a court and enforced as a judgment. Also effective January 1, 2015, an employee claiming to be the victim of discrimination and who works for a company with fewer than 15 employees will

potentially be able to recover up to $25,000 (depending on the size of the employer) in compensatory damages (pain and suffering, mental anguish) and punitive damages, in addition to back wages, front pay, and attorney's fees. The employer may be able to avoid an award of punitive damages if it proves it engaged in good-faith efforts to comply with the law. Click here to read more.

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Same-Sex Marriage Officially Legal in Colorado KKTV reports: Tuesday [10/7], the Colorado Supreme Court lifted the final legal barriers standing in the way of same-sex couples obtaining marriage licenses from county clerks. “There are no remaining legal requirements that prevent same-sex couples from legally marrying in Colorado. Beginning today, Colorado’s 64 county clerks are legally required to issue licenses to same-sex couples who request

them. In addition, the Colorado Department of Public Health and Environment is required to register such marriages in the records of the state of Colorado,” Colorado Attorney General John Suthers said in a statement Tuesday. The sudden legalization of gay marriage in Colorado comes after a surprise decision by the U.S. Supreme Court Monday to not review appeals from five states that were seeking to ban gay marriage: Indiana,

Oklahoma, Utah, Virginia and Wisconsin. The decision affected Colorado because Colorado, like Oklahoma and Utah, falls under the 10th Circuit Court. The 10th Circuit Court found the same-sex marriage bans in Utah and Oklahoma unconstitutional; with the Supreme Court's decision to let that ruling stand, Colorado immediately found its own gay marriage ban invalidated.

Some Colorado counties started issuing marriage licenses immediately after the Supreme Court decision, but most decided to wait until all stays put in place by federal and state courts were lifted. With the news Tuesday that those stays were lifted, El Paso County, which had held off, announced that effective immediately, they were issuing licenses to same-sex couples. Click here to read more.

Health Care Reform & Related News IRS Increases ACA's Affordability Percentages for 2015 SHRM reports: The IRS has released its affordability percentages for 2015 under the employer "play or pay" coverage mandate of the Affordable Care Act (ACA). The IRS also adjusted upward the income level under which employees are exempt from the ACA's individual mandate. Click here to read more. Employers Should Prepare Now for 2015 to Avoid Penalties Jackson Lewis reports: Under the Patient Protection and Affordable Care Act, beginning in 2015, certain large employers who do not offer affordable health insurance that provides minimum value to their full-time employees may be subject to significant penalties. Click here to read more. IRS Prohibits Employer Payment Plans for Health Premiums SHRM reports: Organizations using employer payment plans to reimburse employees on a pre-tax basis for premiums they pay for individual health insurance must stop, according to an interpretation in an Internal Revenue Service (IRS) Q&A

document. Click here to read more. Treasury & IRS Release ACA Employer Mandate SHRM reports: On August 28, the U.S. Department of Treasury and the Internal Revenue Service (IRS) released draft instructions along with revised draft tax forms that provide employers guidance on how to comply with the Patient Protection and Affordable Care Act’s (PPACA’s) employer mandate. The IRS had initially released the draft tax forms on July 24, but without the instructions on how to correctly file the respective forms. Click here to read more. IRS Notice Allows Midyear Departures from Cafeteria Plan SHRM reports: Ordinarily, employees may not change their cafeteria plan elections until open enrollment unless there are qualifying events. But in Notice 2014-55, which went into effect last week, the Internal Revenue Service (IRS) created two new circumstances when employees may revoke their election for employer-sponsored health coverage under the cafeteria plan. Click here to read more.

Midyear Check on Health Plan Compliance SHRM reports: If you sponsor or administer a group health plan, you are almost certainly taking steps to prepare for legal requirements that will become effective on or before Jan. 1, 2015. With that date now only a few months away, this is a good time to take stock of the measures you have completed and those you will need to take regarding recent guidance. Click here to read more. Wal-Mart Offers Shoppers Retail Health Coverage SHRM reports: As the Affordable Care Act makes it easier for employers to drop health care coverage for part-time employees -- and in some cases for all employees -- retail services are springing up to help consumers lacking employer-provided coverage navigate the health care market. Wal-Mart announced it has inked a deal with DirectHealth.com to launch Healthcare Begins Here, an in-store program designed to educate consumers on their health insurance options and to help them purchase insurance offered by multiple carriers. Click here to read more.

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Advocacy Workforce Policy Heating Up in Washington SHRM reports: Earlier in June, SHRM was invited to attend an exclusive policy forum featuring Vice President Joe Biden and U.S. Secretary of Labor Thomas E. Perez on the future of the American workforce. The event discussed the importance of developing the American workforce to take on the challenges of the 21st century workplace. Click here to read more. SHRM Submits Briefs to NLRB on Two Pending Cases SHRM reports: Last month, SHRM submitted amicus briefs to the National

Labor Relations Board (NLRB) on two cases that could have a significant impact on employers nationwide. Click here to read more. SHRM Member Testifies Before House Panel on Outdated FLSA SHRM reports: Nancy McKeague, a SHRM member and a senior vice president and chief HR officer at the Michigan Health and Hospital Association, testified before the House Committee on Education and the Workforce Subcommittee on Workforce Protections. The hearing was on a topic close to the hearts of many HR professionals: how the federal wage and hour regulatory

structure could be improved to assist employers in complying with the Fair Labor Standards Act. Click here to read more. SHRM Participates in OFCCP Listening Session on Equal Pay Provisions SHRM reports: The Office of Federal Contract Compliance Programs (OFCCP) held a listening session on April 29 with leaders from the business community, including SHRM, on two regulatory proposals the U.S. Department of Labor will publish in the coming months regarding equal pay. Click here to read more.

Get Involved SHRM understands how vital member participation is to advancing the views of the profession on Capitol Hill or in state legislatures. The SHRM Advocacy Team initiative is designed for HR professionals to participate and influence federal/state public policy and regulatory efforts. As an advocate for the HR

community, it is important that you keep your elected officials informed on how public policy issues can affect employees, employers, and the HR profession as a whole. SHRM provides our members with other opportunities to "put a face" behind HR and to let their voices be heard. Our

Relationship Building Activities with public policymakers include: Write Your Elected Official Day Inside the Beltway Day Inside the District Reprinted from www.shrm.org

Opportunity for Your Voice to be HealthDid reading about any of the legislation strike a chord? Do you have a story you’d be willing to share? Well, I want your voice to be heard! If you are willing to share your story at a Senate and/or House hearing for HR-related bills,

please let me know so I can put your name on my contact list. It is a much greater impact to have testimony from those immediately influenced by legislation than for the legislators to continually hear lawyer and lobbyist points of

view. You can also submit your comments on proposed regulations and related documents published by the U.S. Federal government at www.regulations.gov.

Just ONE MORE Advocacy Captain Still Needed!!! Could it be YOU??? The Advocacy Team is SHRM’s grassroots initiative to help states connect with their local legislators. SHRM provides us tools so that our voices are heard, such as: talking points, voting records and leave behinds. One of our goals is to build

relationships in our area by making contact at least twice a year with our legislators. The Advocacy Captain role was created to help organize these efforts as well as legislative activities in their district. We are still looking

for Captain in District 6 (Mike Coffman). Let Lara Makinen or Meredith Nethercutt, SHRM Senior Associate for Member Advocacy; know if you are interested in this imperative legislative role.

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News from the NLRB NLRB Ratifies Year and a Half of Administrative Actions SHRM reports: The National Labor Relations Board (NLRB) has announced that it has unanimously ratified all administrative, personnel and procurement matters taken by the board from Jan. 4, 2012, to Aug. 5, 2013. Click here to read more.

NLRB Rules That “Liking” A Facebook Comment Is Protected Activity Seyfarth Shaw reports: The National Labor Relation Board (“Board”) issued its latest decision on social media issues on August 22, 2014. In Triple Play Sports Bar & Grille, 361 NLRB No. 31 (2014), the Board ruled that a Facebook discussion regarding an

employer’s tax withholding calculations and an employee’s “like” of the discussion constituted concerted activities protected by the National Labor Relations Act (“Act”). The Board also held that the employer’s internet and blogging policy violated the Act. Click here to read more.

News from the EEOC EEOC Issues Guidance on Pregnancy Accommodation SHRM reports: The Equal Employment Opportunity Commission (EEOC) issued enforcement guidance on pregnancy discrimination and related issues. The guidance, which was not published for public comment prior to its release, includes a new interpretation of the Pregnancy Discrimination Act that would require employers to provide "reasonable accommodation," as defined by the Americans

with Disabilities Act, to pregnant employees. Click here to read more. EEOC, FTC Provide Tips on Use of Employment Background Checks Jackson Lewis reports: The U.S. Federal Trade Commission (“FTC”) often looks to the Equal Employment Opportunity Commission (“EEOC”) for advice and assistance on issues related to the various laws, executive orders, and regulatory guidelines that

affect the workplace. Therefore, it is no surprise, and perhaps even past time, that the FTC and EEOC co-authored two documents (Background Checks: What Employers Need to Know and Background Checks: What Job Applicants and Employees Should Know) explaining how the agencies’ respective laws apply to background checks performed on job applicants and current employees. Click here to read more.

News from OSHA OSHA Announces New Injury Reporting Rules SHRM reports: The Occupational Safety and Health Administration (OSHA)

has announced a final rule that revises the requirements for reporting work-related fatality, injury and illness information. The rule also

updates the list of employers partially exempt from OSHA record-keeping requirements. Click here to read more.

News from the OFCCP Office of Management and Budget (OMB) Approves OFCCP's Revised Scheduling Letter and Itemized Listing On September 30, 2014, the Office of Management and Budget (OMB) approved the revised scheduling letter and itemized listing used by the Department of Labor, Office of Federal Contract Compliance Programs (OFCCP) for audits of federal contractors' affirmative action programs. The approval expires on

March 31, 2016. As a result, OFCCP is no longer using the previous versions of these documents to schedule compliance evaluations. OFCCP has announced that it will not schedule supply and service compliance evaluations from October 1 through October 15, 2014. Contractors should use this period to review and become acquainted with the new letter and itemized listing. These documents incorporate some

of the proposed changes from the 2011 revisions, as well as changes to ensure that we obtain the information needed for evaluating the new Section 503 and VEVRAA affirmative action programs. The schedule letter and itemized listing, and compliance check letter are available on reginfo.gov here. Click here to read more.

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USCIS E-Verify to Delete Older Records in 2015 SHRM reports: As of Jan. 1, 2015, employers won't have access to E-Verify

records that were created on or before Dec. 31, 2004. The E-Verify electronic employment eligibility verification system will delete

data more than 10 years old on an annual basis, U.S. Citizenship and Immigration Services (USCIS) announced. Click here to read more.

VETS VETS-4212 Form Reduces Paperwork Burden SHRM reports: Some relief for federal contractors has come from regulators in Washington, D.C., who have simplified the way contractors report on the number of employees and new hires who are veterans covered by the Vietnam Era Veterans' Readjustment Assistance Act. The VETS-4212 Report, which will replace the VETS-100A Report in 2015, cuts the required reporting elements by almost half, from 82 to 42. Click here to read more. VET100A Final Rule posted in the Federal Register Annual Report From Federal Contractors reports: The Veterans' Employment and Training Service (VETS or the Agency) is issuing this Final Rule to revise the regulations implementing the reporting requirements under

the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended (VEVRAA). Generally, VEVRAA requires Federal contractors and subcontractors to annually report on the total number of their employees who belong to the categories of veterans protected under VEVRAA, and the total number of those protected veterans who were hired during the period covered by the report. This Final Rule rescinds the regulations that prescribe the reporting requirements applicable to Government contracts and subcontracts entered into before December 1, 2003, because those regulations are now obsolete. In addition, this Final Rule revises the regulations that prescribe the reporting requirements applicable to Government contracts and subcontracts of $100,000 or

more entered into or modified after December 1, 2003, by changing the manner in which Federal contractors report on their employment of veterans. The Final Rule renames the annual report required under those regulations the Federal Contractor Veterans' Employment Report VETS-4212. Further, the Final Rule revises regulations that address the definitions of terms used in the regulations, the text of the reporting requirements clause included in Government contracts and subcontracts, and the methods of filing the annual report on veterans' employment. Contractors and subcontractors will have to comply with the reporting requirements in the Final Rule beginning with the annual report filed in 2015. Click here to read more.

Education Corner This section contains educational opportunities pertaining to legal, employment law and legislative issues. Answers to the World’s Scariest Employment Law Questions Manpower Thursday, 10/30 @ 10am Click here to register. Unlawful Conduct by Employees – Prevention, Detection and Response Jackson Lewis Thursday, 11/13 @ 11am

Click here to register. Affordable Care Act Reporting Requirements SHRM On Demand Click here to register. Generation Z: The Next Generation of Worker and Consumer SHRM On Demand Click here to register. Reality Check: Your I-9 Practices SHRM

On Demand Click here to register. SHRM Certification Update On Demand Click here to register. If you have knowledge of other employment law and/or legislative educational opportunities, please forward them to Lara Makinen for submittal in the next edition of Legislative Snippets.

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In Other News…. Employers Should Be Prepared as Ebola Outbreak Grows SHRM reports: Employers should educate employees working in areas threatened by the Ebola virus about how to prevent the spread of the disease, and should be ready to respond if an employee becomes sick. West Africa's Ebola outbreak is the deadliest in recorded history, infecting 1,200 people and killing over 700 so far. Click here to read more. Should HR Confront Employees Who Perpetrate Domestic Violence? SHRM reports: The steps an employer should take when it suspects an employee is committing domestic violence are far from clear, management attorneys say. Two considerations are whether that person poses a general danger to workplace safety if he or she really has a propensity to violence, and whether there is an ethical duty to report concerns to legal authorities. Click here to read more. Why Your Company Needs A Handbook Fisher & Phillips reports: The days of believing that a handbook can cause more harm than good are long gone. In today’s business environment, a handbook serves both as a sword to carve out your legal rights as well as a shield to protect them. A handbook sets expectations, encourages employees to behave in certain ways, helps ensure that employees are treated consistently, publicizes employee benefits, and helps win unemployment claims and lawsuits. These are just a few of the reasons why every employer, regardless of the

number of employees, should have one. Click here to read more. Blurring The Line Between Yours And Mine: Best Practices For Bring Your Own Device Policies Fisher & Phillips reports: Let’s face it: bring-your-own-device (BYOD) situations are here to stay. With the ubiquity of employees having and using smartphones and tablets – devices that have more capacity and processing power than desktop computers from not so long ago – it was inevitable that employees would eventually start to use their own devices in a work capacity. This new reality presents benefits for employers, as their employees can now be productive away from the office and be responsive to work situations as they arise. Additionally, there are cost savings that can be achieved when an employer is no longer responsible for supplying devices to its employees. Click here to read more. Enforcing Your Policies Outside The Workplace Fisher & Phillips reports: All employers adopt and enforce policies regulating conduct at the workplace. Many employers expect that employees will follow their employment polices at all times regardless of whether the employee is working or at work. Today, in the age of social media and smartphones, employers and employees have much greater visibility when they leave work – giving employers the ability (and desire) to monitor their workers after hours, and resulting in greater exposure and potential for harm to an employer’s reputation. But can you

monitor or discipline employees for policy violations that occur when an employee is off-duty and off-premises? Click here to read more. The Chicken Or The Egg? Fisher & Phillips reports: You finally decided to take the long overdue disciplinary action. Jack has got to be disciplined. But just before you do, Jack, possibly sensing what’s about to happen, makes a complaint of harassment. This is the first you’ve heard of this problem. Is the complaint legitimate? What do you do? Continue with the planned disciplinary action? Put your decision on hold while you investigate? Will it look like retaliation if you proceed with the discipline? On the one hand, employers have the right to take disciplinary action. On the other hand, employees have the right to make good-faith complaints about what they believe is unlawful conduct without fear of reprisal. In situations such as the one described above, the issue will be which came first – the decision to take disciplinary action or the complaint of harassment. Click here to read more. When Employees Solve Problems With Their Fists Fisher & Phillips reports: Generally speaking, human resources professionals and business executives have become quite adept at dealing with employee claims for illegal harassment. For example, just about any HR manager can provide a definition of a “hostile work environment.” Likewise, HR managers are keenly aware of what to do when handling workplace romantic relationships or inappropriate conduct that

have the potential to generate a lawsuit. But can HR managers provide a legal definition for the term “assault?” This has become an important new concept for managers to learn in supervising employees and ensuring that the workplace is not a breeding ground for litigation. HR managers are accustomed to investigating employee complaints with an eye towards the common federal claims upon which they have been trained, but they are now going to have to pay attention to emerging state-law claims, as well. Click here to read more. Starbucks’ Scheduling Changes are a Start, But We Need Public Policies CLASP reports: Starbucks has announced that it will enforce its existing scheduling polices and eliminate some unfair practices following a recent New York Times article about the harrowing experiences of an employee grappling with an erratic, unpredictable schedule. The Times article highlights the role of scheduling software, such as the programs made by Kronos, that enable managers to modify workers’ schedules in almost immediate response to slight changes in consumer demand, weather, shipment deliveries, and more. Charles DeWitt, vice president for business development at Kronos, said his product is “like magic.” But these computer programs are anything but magical for the millions of workers whose lives are upended by constantly shifting schedules. Click here to read more.

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Interesting Cases… Supreme Court Strikes Down NLRB Recess Appointments Fisher & Phillips reports: Dealing the agency its second major setback on the legitimacy of its quorum, the Supreme Court has invalidated a trio of recess appointments made to the NLRB back in January of 2012. Moments ago, the Court handed down its landmark decision in NLRB v. Noel Canning, upholding a challenge to the agency’s authority to issue hundreds of decisions over the 18 months that followed the invalid appointments. Click here to read more. Supreme Court Rules In Favor Of Religious Beliefs Of Business Owner Fisher & Phillips reports: Today, a divided U.S. Supreme Court held in a 5-4 decision that closely-held for-profit corporations providing group healthcare to their employees could, on religious grounds, be exempted from providing contraception coverage to employees required under the Patient Protection & Affordable Care Act. Click here to read more. Untimely FMLA Notices Didn't Harm Worker SHRM reports: A school teacher who received inadequate and untimely Family and Medical Leave Act (FMLA) eligibility and designation notices from the school district that employed him failed to show that the deficient notices had caused him to suffer any harm, according to a ruling by the 1st U.S. Circuit Court of Appeals. Click here to read more.

Court Upholds University's Inflexible Six-Month Leave Policy as Nondiscriminatory SHRM reports: The 10th U.S. Circuit Court of Appeals upheld a university's inflexible six-month leave policy, finding that the university was not required to provide an employee undergoing cancer treatment with more than six months' medical leave as a reasonable disability accommodation. Click here to read more. FMLA Does Not Necessarily Require Disclosure of Return Date SHRM reports: An employee did not fail to provide essential information regarding the duration of her leave under the Family and Medical Leave Act (FMLA), where the employee did not herself know how long the leave would be, the 7th U.S. Circuit Court of Appeals has ruled. Click here to read more. Prohibiting Male Guards for Female Inmates Might Be Discriminatory SHRM reports: The city and county of San Francisco may be engaging in unlawful sex bias under Title VII of the 1964 Civil Rights Act and state law by barring male deputies from supervising female inmates in county jails, the 9th U.S. Circuit Court of Appeals has ruled. Click here to read more. Discipline Threat for False EEOC Charges Was Adverse Action SHRM reports: A police department's threat to discipline officers for filing false Equal Employment Opportunity Commission (EEOC) charges was an

adverse employment action, but the officers failed to overcome the department's legitimate nonretaliatory reasons for the threat, the 2nd U.S. Circuit Court of Appeals has ruled. Click here to read more. Entry-Level Accountants Exempt Under FLSA's Professional Exemption SHRM reports: An employer properly classified entry-level audit professionals at a major accounting firm as exempt under the “learned professionals” exemption of the Fair Labor Standards Act (FLSA), the 2nd U.S. Circuit Court of Appeals held. Click here to read more. Employer May Require Psychological Examination SHRM reports: An employer may require an employee to undergo a psychological examination if the employer has sufficient on-the-job evidence that the employee's emotional state significantly impairs her ability to perform the essential functions of her job or poses a direct threat to the health and safety of others, according to a ruling by the 6th U.S. Circuit Court of Appeals. Click here to read more. 'Cantankerous' Employee with ADHD Not Disabled SHRM reports: An employee who has trouble getting along with co-workers is not disabled under the Americans with Disabilities Act, even if his problems are due to a diagnosed mental impairment like attention deficit hyperactivity disorder (ADHD), according to a ruling by the 9th

U.S. Circuit Court of Appeals. Click here to read more. Failure to Submit Medical Release Valid Reason for Termination SHRM reports: In a recent ruling, the 8th U.S. Circuit Court of Appeals rejected a worker's Americans with Disabilities Act and Family and Medical Leave Act discrimination and retaliation claims where the employee failed to comply with a policy requiring immediate submission of medical release forms to his supervisor. Click here to read more. Employer May Determine Workweek for Payroll Purposes under FLSA, Federal Court Rules Jackson Lewis reports: Under the Fair Labor Standards Act, an employer may use a Monday-through-Sunday “workweek” to calculate overtime pay for employees with work schedules of Thursdays through Wednesdays, the federal appellate court in New Orleans has ruled. Johnson v. Heckmann Water Res. (CVR), Inc ., No. 13-40824, 2014 U.S. App. LEXIS 13501 (5th Cir. July 14, 2014). Click here to read more. Regular Mail May Not Be Sufficient for Delivery of FMLA Notice SHRM reports: An employer may not rely on "the mailbox rule" to prove that the employer provided an employee with notice of his or her rights under the Family and Medical Leave Act (FMLA), the 3rd U.S. Circuit Court of Appeals has ruled. Click here to read more.

Legislative Snippets Page 10 of 12 COLORADO LEGAL UPDATESUse Totality of Circumstances Test in Independent Contractor Analysis SHRM reports: Courts and agencies should use a totality of the circumstances test in determining if an individual is an independent contractor rather than an employee under the Colorado Employment

Security Act for unemployment tax liability, the Colorado Supreme Court ruled. Click here to read more. Police Captain Who Opposed Event at Islamic Center Lacks Constitutional Claim SHRM reports: A police captain who claimed that he was punished by his

superiors for refusing to attend an event at a mosque failed to prove that his constitutional rights had been violated, the federal appellate court with jurisdiction over Colorado ruled. Click here to read more. New Employment Verification Form Must Be Used SHRM reports:

The Colorado Department of Labor and Employment has released a new mandatory Affirmation of Legal Work Status form that must be used by employers for new hires (within the state) who are hired on or after Oct. 1, 2014. Click here to read more.

Drugs in the Workplace Drug Use Up Among Workers SHRM reports: For the first time since 2003, the rate of workers testing positive for drugs is up, largely

due to the legalization of recreational marijuana in Colorado and Washington state, according to Quest Diagnostics. The rate of workers testing positive for

marijuana increased 20 percent in Colorado and 23 percent in Washington between 2012 and 2013, compared to the 5 percent average increase among the

U.S. general workforce in all 50 states. Click here to read more.

Confusion abounds as Colorado Supreme Court considers workers' pot use The Denver Post reports: A Colorado Supreme Court hearing that will have major implications for marijuana and the workplace ended Tuesday [9/30] with the state's most esteemed justices mostly scratching their heads. The debate topic was this: If it isn't illegal to use medical marijuana, does that make it a "lawful" activity for which employers can't fire you? How the justices answer that question will, for the first time, define whether employers must tolerate medical-marijuana use by their employees and will set whether medical-marijuana patients have any job protection for their cannabis use. The outcome also has implications for recreational marijuana use, which presents similar questions. In an era of more permissive state laws on marijuana, the justices' decision could significantly affect whether people take advantage of those laws. An attorney for

Brandon Coats, a quadriplegic who was fired for medical-marijuana use and who brought the case, said if the justices rule strictly against patients, "that means our medical-marijuana amendment is really just for the unemployed." Vance Knapp, an attorney who is not connected to the case but has followed it closely, said a ruling in favor of Coats could throw employment law "into chaos." "This is a hot issue nationally," Knapp said. "At a minimum," Coats' attorney, Michael Evans, said after the hearing, "I think everyone is going to get clarification." For an hour Tuesday morning, Evans and an attorney for Dish Network, the company that fired Coats, sparred over the issue in the state Supreme Court's ornate downtown chambers. And, repeatedly, the Supreme Court justices

interjected with the most basic of questions. Justice Allison Eid asked both attorneys what they think "lawful" means. Justice Gregory Hobbs questioned the attorney for Dish Network about her definition of "use." Chief Justice Nancy Rice frequently asked about the simple facts of the case. "Both counsel are asking us to write a discreet, well-crafted opinion," Rice said during the hearing. "And I don't know what happened here." That confusion reflected the conflicting jumble of state and federal laws on display during the hearing. Coats, who has used medical marijuana to control spasms and seizures since a car accident, says he never used nor was impaired on the job. He contends he was fired in 2010 from his job as a Dish Network customer service representative after a cheek-swab drug test revealed inactive THC in his system.

Dish Network says it has a zero-tolerance policy against employees using illegal drugs. Coats challenged his dismissal under a law called the Colorado Lawful Off-Duty Activities Statute. The law protects employees from termination for doing things off-the-clock that are legal. But that's where the crux of the case rests: Is medical marijuana, which Colorado voters approved in 2000 but is illegal federally, actually "lawful"? Two lower courts have said no, and Dish's attorney, Meghan Martinez, urged the Supreme Court to find the same. She argued that Colorado's medical-marijuana law, which is in the state constitution, doesn't guarantee patients the right to use marijuana. "It is an affirmative defense or it is an exception to state criminal laws," she said. "It is not a broad right." Click here to read more.

Legislative Snippets Page 11 of 12

SHRManswers Testing Minors Q: Are there any restrictions when performing background checks or drug tests on minors? A: Running third-party background checks on minors falls under the Fair Credit Reporting Act, just as these checks would for any other applicant or employee; therefore, careful understanding of the nature of a minor's consent is necessary for employers to be protected. Before seeking consent in conjunction with pre-employment screenings, employers should understand that minors are generally not able to legally provide consent, as persons under the age of 18 (lower in some states) are unable to enter legally binding agreements, with few exceptions. Click here to read more. Working the Holiday Q: If employees work on a holiday, must we give them another holiday? If so, must it be within the same week or in a given period of time? A: The Fair Labor Standards Act (FLSA) does not require employers to provide paid time off for holidays or additional pay or another day off for working on a holiday. When there is no legal or contractual requirement, providing holiday benefits is at the discretion of the employer. Click here to read more. Banned for Life? Q: Can a company have a policy to disqualify applicants who fail drug tests from future employment consideration? A: Such a policy would likely violate the Americans with Disabilities Act. An employer has the right to discharge or deny employment to persons who currently engage in the illegal use of drugs. However, employers may encounter legal challenges if they deny all future employment based

on past failure of a drug test. Click here to read more. Dependent Coverage Q: Under the PPACA does an employer have to pay a penalty tax, if it fails to offer group health plan coverage to employee's dependents? A: Although some employers may not be required to offer dependents coverage under the group health plan, beginning January 2015, failure of "large employers" to do so may result in an "assessable payment" penalty under the "pay or play" provision of the Patient Protection and Affordable Care Act (PPACA). A large employer that fails to offer coverage to an employee's dependents is not meeting the requirements for coverage under the PPACA, and therefore, is treated as not offering coverage at all for the purposes of the assessable penalty. Click here to read more. Time for a Time Out Q: Is there a limit to the number of consecutive days or the number of hours an exempt employee can work? A: Generally speaking, the Fair Labor Standards Act places no limit on the number of hours or days that an employee age 16 or older may be required to work. But while there may be no federal regulatory limitations, and only limited state regulatory limitations, on hours and days worked, employers should not view this is as rationalization for lengthening the workweek requirements for exempt staff. Click here to read more. FMLA and Group Health Plans Q: When do group health plan benefits terminate for an employee on a non-FMLA leave of absence? A: When an employee is on Family and Medical Leave Act

(FMLA) leave, a covered employer is required to maintain group health insurance coverage for the employee and his or her family under the same terms and conditions held prior to the leave. However, when an employee is not on FMLA leave, an employer may need to determine if the leave falls under other federal or state leave laws. Click here to read more. Privacy Notice Q: Can an employer reduce an employee's pay to minimum wage during his or her two-weeks' notice period? A: Generally speaking, the Fair Labor Standards Act does not prohibit an employer from reducing an at-will employee's hourly rate, provided the employee is paid at least minimum wage. However, the Department of Labor notes that reductions in the predetermined salary of an exempt employee would ordinarily result in the loss of the exemption. Click here to read more. Ergonomically Correct Q: Do employers have to provide ergonomically correct furniture under OSHA requirements? A: Maybe. Although OSHA regulations do not mandate that an employer provide ergonomic equipment such as work stations and chairs, employers have an obligation under the General Duty Clause, Section 5(a)(1) to keep the workplace free from recognized serious hazards, including ergonomic hazards. Click here to read more. Managing Consultant Q: Can an independent contractor or a consultant manage company employees? A: Allowing independent contractors or consultants to manage company employees is not for frugal or risk-adverse

employers and is generally not a recommended practice. Among the many concerns: Consultants and independent contractors are bound by the terms of their consulting agreement or contract, not by the organization's personnel policies. Click here to read more. Biometric Roll Call Q: Can employers track employees' attendance by using biometric timekeeping systems? A: Many state or local laws permit employers to use biometric timekeeping systems. Biometrics are automated methods of recognizing a person based on a physiological or behavioral characteristic, such as face, fingerprints, hand geometry and voice. However, before relying on biometrics attendance tools, employers should consider potential issues that could arise, in particular concerns about disability discrimination and employee privacy, as well as possible future legislation. Click here to read more. Reapplying for Your Job Q: What are the pros and cons to requiring that employees reapply for their jobs during a company restructuring? A: Although this approach seems controversial, there are reasons organizations may choose to ask employees to reapply for their positions, particularly during restructurings. It clearly defines staffing needs, helps identify the most qualified workers and weeds out employees who do not wish to stay. On the downside, it's time consuming and contributes to an unstable atmosphere in the workplace. Click here to read more.

Page 12 of 12 Legislative Snippets

Check Out the CO-SHRM Government Affairs Page Have you been to the CO-SHRM Government Affairs page lately? Here are some of the links you can find at www.coshrm.org on the Government Affairs page: SHRM Government Affairs

News Back issues of Legislative

Snippets

SHRM Monthly Legislative Update

Colorado Legislative Information

Colorado General Assembly Information

Local Chapter Legislative Affairs Contact Information

Colorado Voting Information

As well as numerous internet resource links.

If you have legislative links to share, please send them to Lara Makinen so they can be posted on this resource page as well.

Let Recruiters Find You! SHRM’s Resume Center attracts employers who are in search of the best HR candidates. (Your name and your employer’s name can

remain anonymous.) Add your resume to the Center and get noticed by employers.

Click here for the SHRM Jobs page. Reprinted from www.shrm.org

If You Are Certified, You Should Read This: Many HR professionals are certified and seek to obtain the necessary credits in order to recertify every three years. But, many also do not know simple tricks to help rack up credits in a very easy way. For example, did you know that you can receive HRCI

credit for: attending SHRM

conferences being a member of SHRM writing letters to Congress participating in certain

SHRM surveys attending certain webinars volunteering with your local

SHRM chapter For more information on how to recertify as well as check what qualifies for recertification credit, please visit www.hrci.org.

Info Calls Join the Colorado State Legislative Information Calls to get involved and stay informed. Here is a schedule of upcoming calls:

Tuesday, January 20th Call Number: (800) 745-6370 Pass Code: 5356074

Stay Informed… Here are some resources to help keep you up to date: www.whitehouse.gov www.dol.gov www.justice.gov www.supremecourt.gov www.senate.gov www.house.gov www.congress.org/news www.leg.state.co.us www.colorado.gov/cs/Satellite/CGA-LegislativeCouncil/CLC/1200536089188

www.govtrack.com www.findlaw.com www.realclearpolitics.com www.shrm.org www.hrlegalnews.com www.blr.com www.elt.com SHRM Express Request: Colorado State Law Resources SHRM's Information Center has compiled a variety of online employment law resources applicable to your

state. Click here to sign up. SHRM’s Focus on HR video series can be found at: http://www.shrm.org/multimedia/video/focusonhr/Pages/2012_5_24.aspx. If you know of other great resources, please notify Lara Makinen so she can include them in the next Legislative Snippets.

Colorado SHRM State Council

Lara J. Makinen, PHR Legislative Affairs Director

10900 W. 120th Ave., Unit B7 Broomfield, CO 80021

CELL:

(303) 808-4378

E-MAIL: makinen.co.lad@gmail.com

GENERAL INQUIRIES:

info@coshrm.org

We’re on the Web! Check us out at:

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Chapter Legislative

Affairs Directors: BAHRA: Brad Hendrick BHendrick@celaw.com CSSHRM: Peter Ristig pristig@gmail.com NCHRA: David Dixon DDixon@msec.org