Colorado Employment Law and Non-compliant Employees

Perhaps the only thing we dread more than being fired is having to fire someone. When we are dealing with a non-compliant employee, it is understandable that we would want to get to the bottom of the issue rather than jump directly to firing. This post will offer recommendations for getting to the bottom of what’s going on with a non-compliant employee, as well as some advice if a demand for compliance or termination is in order.

Non-compliant Employees Have Issues

I’m not just being tongue in cheek here – you may or may not agree with the issues that are causing an employee to be non-compliant, but you do need to know what the issues are and you need to hear it directly from the employee. It may feel like you can avoid conflict by asking the employee’s supervisor or peers what the problem is, but this will work against you in two ways. First, there is a good chance you will not get the story straight, and second, the employee may feel he or she has still not had an opportunity to express important concerns to someone who may have the will and ability to resolve them. You can assume that non-compliant employees have issues by their behavior – but don’t assume to understand what the issues are until you’ve listened carefully to the employee.

Positive and Negative Motivators

If you disagree with the employee’s reasons for refusing to comply, and you value the contributions the employee is making in other areas, consider applying a little motivation. Your approach will work best if you know how the employee thinks; some folks don’t respond to positive motivation at all, and others crumble at anything that can be interpreted as a threat. Once you decide what type of motivation you want to put in play, there are dozens of ways to do so.

Demanding Employee Compliance

Once you feel you have listened well and the employee acknowledges he or she has been heard and understood, you may wish to skip attempts to motivate the desired behavior and simply demand compliance. If so, consider the advice of Alison Green, who addresses workplace and management issues for readers of the Denver Business Journal. Green advises you set an expectation and explain that non-compliance “will jeopardize [the employees] job.” This should bring clarity to the request. Is it legal to fire an employee for non-compliance on any issue in Colorado? Colorado is an employment-at-will State :

Colorado follows the legal doctrine of “employment-at-will” which provides that in the absence of a contract to the contrary, neither an employer nor an employee is required to give notice or advance notice of termination or resignation.

As long as your reason for firing is not illegal (ex: sexual orientation, gender bias, etc.), you are permitted to fire as you see fit. Even if you are firing an employee for sound reasons, it is a good idea to document the problems leading up to the firing, just in case the employee sees it differently and decides to bring a wrongful termination suit against you. Ask your Colorado business attorney for advice about documenting employment performance issues, just to make sure you have covered your bases. Also, if this is your first time firing an employee, you may want to conduct a quick legal review of the process with your attorney.

If you have questions about Colorado employment law and dealing with non-compliant employees, , contact me, Elizabeth Lewis, at the Law Office of E.C. Lewis, P.C., home of your Denver Small Business Attorney. Phone: 720-258-6647. Email: elizabeth.lewis@eclewis.com

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CO Ranked #4 State for Business by CNBC

This year’s rankings by CNBC for best states for business are in, and Colorado has taken the #4 spot. This comes as a significant, but not surprising, improvement from last year, where we discussed CO’s position at #8 in the CNBC rankings. Take a look at a complete breakdown of the rankings by state and categories here.

The rankings are conducted by scoring each state on 10 key categories including the following (in order starting with the most valuable to the overall score): Workforce, Cost of Doing Business, Infrastructure, Economy, Quality of Life, Technology & Innovation, Education, Business Friendliness, Cost of Living, and Access to Capital. Colorado managed to snag top ten rankings in four categories including: Economy (3rd), Quality of Life (9th), Tech & Innovation (5th), and Access to Capital (8th). Colorado was noted for it’s strong economy with a low unemployment rate of 4.3% and its innovation.

I was surprised to see that the Centennial State only got 9th in the quality of life category, especially since it tied with Iowa for this position. There is so much great outdoor recreation to explore here in Colorado, but you can scrutinize the methodology and rankings yourself with the methodological breakdown available here.

Overall, this news comes as yet another of the growing number of reasons and reports demonstrating that Colorado is a great place to live and a great place to do business. Now could be a great time for you to get started and put your entrepreneurial spirit to work.

If you a ready to start doing business in Colorado, then don’t hesitate to contact the Law Office of E.C. Lewis, P.C., home of your Denver Small Business Attorney, Elizabeth Lewis, at 720-258-6647 or email her at elizabeth.lewis@eclewis.com.

Non-Compete Agreements in CO

Simply put, non-compete agreements are contractual agreements that generally provide for individuals not to compete with their employer while they are employed and for a period of time after leaving the company. Even the sandwich company, Jimmy John’s, has been under fire for its broad non-competes for its low-level employees including sandwich makers and delivery drivers not to compete with any restaurant that sells sandwiches for two years.

Generally speaking, all states require non-competes to be “reasonable” to be valid, but some states go even further. California considers almost all non-competes to be invalid by default, which some claim sparked the economic boom in Silicon Valley by fostering competition.

Here in Colorado under C.R.S. § 8-2-113, non-competes must fit within four particular exceptions to be upheld in court as valid and enforceable.

These specific exceptions include:

  1. Contracts for the purchase and sale of a business or its assets
  2. Contracts for the protection of trade secrets
  3. Contracts providing for the recovery of education and training expenses of an employee who has served an employer for less than two years
  4. Executive and management personnel and officers and employees who constitute professional staff to executive and management personnel

If the non-compete does not fit within one of these statutory exceptions, then it is not considered to be valid in the State of Colorado. However, even if it may appear to fit within an exception, there are still fact-specific considerations and other reasonableness concerns as to the specific applicability and terms of the agreement that need be considered. So before you have your employees sign a non-compete or think about starting your own business when you have already signed a non-compete, be sure to speak with a knowledgeable attorney first to find out more about its enforceability.

Even if it looks like it would be considered unenforceable by the courts, there is always some level of risk in taking it to court. Additionally, there is a lot of time, money, and stress involved in that process, so it may still be a good idea to wait out the agreement or even try negotiating a settlement between you and the company. With these other considerations in mind, the importance of discussing the options with an experienced attorney is even more vital.

If you would like help in drafting or reviewing a non-compete for you, reach out to the Law Office of E.C. Lewis, P.C., home of your Denver business attorney, Elizabeth Lewis at 720-258-6647 or by email at elizabeth.lewis@eclewis.com.

CO’s Economy & Energy Prices

Colorado was recently ranked 3rd among US state economies by Business Insider. You can see the full report here. This is not too surprising since Business Insider also ranked CO as being the fastest growing state economy last year. A large part of the methodology of the new ranking, Business Insider was looking at factors such as GDP per capita, unemployment rate, weekly wages, and state government budget situation.

Naturally, all of these individual factors are significantly affected by the state of the energy market, especially for states like Colorado with significant oil and gas exploration and development. It’s interesting to note that North Dakota came in at #1 on this list and Texas at #2, two states that also have substantial energy-based economies. With the recent drop in oil prices and reduction in related jobs, it will be interesting to see how this impacts Colorado’s economy. We already discussed in a previous post about how the lower gas prices have increased hiring and business overall in other sectors of the economy.

So far, it has been reported that Colorado has not been significantly impacted by the drop in oil prices yet, at least as far as the recent data is able to show. However, this will not likely remain the case. It was reported that half of Colorado’s drilling rigs have not been in operation for months. Growth and other economic projections for the state’s future are not as bright as they once were. This is expected to increase unemployment, reduce GDP, and also reduce state tax revenues too.

Colorado does have a diversified economy, certainly much more so than say, North Dakota, and the state is expected to weather the storm in the energy market better than other areas, with continued growth and low unemployment rates continuing, just perhaps not quite as strong, into the future. After all, business confidence here in Colorado is still continuing to rise. Colorado is and will continue to be a top state for businesses both big and small.

 

If you have questions about legal matters for your business, don’t hesitate to reach out to the Law Office of E.C. Lewis, PC, home of your Denver Business Attorney, Elizabeth Lewis, at 720-258-6647 or email her at elizabeth.lewis@eclewis.com.

 

How to Research Your Business Idea

If you are thinking about starting a new business, or just thought of an idea for a business, many people think someone out there is already doing it and that they should not bother. Instead of stopping there, why not spend just a few moments putting this idea to the test? By taking some simple steps, you can get a basic answer to the question of whether or not someone is doing the idea that you thought of. Be sure and also take a look at How to Research Your Business Name.

Step one is easy enough, run a few searches online, with your preferred search engine, of your business idea, to see if there is someone out there using it already. If you do find something similar or related to what you had in mind, it is important to take note of just how alike these findings are to your idea. Also look at whether or not they are actively using the idea and what areas of the country they are located in. If you do not find anything using broad terms or find too many results to manage, consider narrowing your search with more specific terms or with geographical terms, to give you more precise results.

Step two is a little more tedious, but it can give you some of the most important information of all. Visit the U.S. Patent Office website to search trademarks and patents, to see if anyone has any federal protections on ideas for slogans, symbols, inventions, and others.

To search through the trademark database, go to http://tmsearch.uspto.gov and run some Basic Word Mark searches. If you find something similar to your idea, follow this up with a normal online search to see if they are still an active company. You want to look and see whether or not they are actually selling or doing whatever it is they claimed is associated with the trademark. This is only the federal registry, so you will also want to take a look at your state’s registry too. Colorado’s can be found at http://www.sos.state.co.us/biz/BusinessEntityCriteriaExt.do, and this will search business names and trademarks. Remember that when it comes to trademarks, there are federal, state, and common law protections available to be considered.

To search the federal patent register, go to http://appft.uspto.gov/netahtml/PTO/ and click on Quick Search under Patents. Now try running different terms based on your business idea to see if someone has already patented what you had in mind. Remember that in order to be patentable, the idea must be an invention or improvement to an existing invention that is useful, novel, non-obvious, adequately described or enabled, and claimed by the inventor in clear and definite terms.

Copyrighted works can also be useful things to search through if your business idea involves any creative works. You can visit http://copyright.gov/eco/ and search their database. This database will only search the national registry, meaning someone must have registered their copyright for it to be here (which is not required), so it is important to note that this search is not exhaustive. However, this is still an important place to check regardless.

If you do not turn up any results that are similar using the various search engines and techniques described here, this is good news, but keep in mind that these are basic searches and it is recommended that you speak with an attorney to discuss if more thorough searching is necessary. Nevertheless, the information you obtained will still be helpful in determining what your next step should be.

On the other hand, if you did find someone is already doing what you had in mind, do not give up! Start thinking about a different approach to whatever the existing business is selling or doing, so you can continue refining your entrepreneurial ideas. Keep in mind that you can always consider sitting down with an attorney to explore the level of differences necessary to move forward with your business and protect you against related businesses already operating.

If you have any questions about your findings or you are ready to take the next step in starting your business or protecting your business idea, contact the Law Office of E.C. Lewis PC, home of your Denver Business Lawyer, Elizabeth Lewis, 720-258-6647 or email her at Elizabeth.Lewis@eclewis.com.