by eclewis | Feb 11, 2017 | Business News
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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by eclewis | Sep 15, 2016 | Business News
While some employees might well be rejoicing, recent changes in overtime rules have some employers concerned. When the Department of Labor’s Overtime Rule was announced in May 2016, it introduced some important changes that will surely impact employees and employers for small businesses, non-profits and universities in Colorado. Among the many provisions within the rule, it provides for several items of note for salaried employees, including:
- Establishes a mechanism for automatically adjusting employee income levels every three years
- Sets standards for salary levels of the lowest-wage regions of the U.S., based on Census data
- Allows employers to use nondiscretionary bonuses and incentive payments to satisfy up to 10% of the new salary level
The DOL has released a downloadable fact sheet that answers a great deal of the questions surrounding the new rule, but despite a plethora of information and guidance available, Colorado employers are still trying to get their heads around the many ways it will affect their businesses. While it might seem like a raise is on the horizon for some employees, it could be that only a few employees at any given company will see an increase in their own compensation, and some employers might decide their resources are spread far too thin to implement the new rule the way it’s written, so could switch some employees from salaried to hourly or other another status.
The rule is intended to update overtime thresholds (which have been updated only twice in the last 40 years) for employees who are currently exempt from overtime pay, and even though the new rule is set to take effect December 1, 2016, there are some lawmakers who have presented legislation designed to roll the rule out in phases, with full thresholds being met entirely by December 1, 2019. Representatives who introduced the Overtime Reform and Enhancement Act would like to have the threshold spread over three years. This “phasing in” period, they believe would give more time to employers, so they can adjust to the new rule in increments, both financially, and in relation to staffing needs. Their position is summarized by Congressman Kurt Schrader, who states:
“Without sufficient time to plan for the increase, cuts and demotions will become inevitable, and workers will actually end up making less than they made before,” says Schrader. “It’s long past time we strengthen overtime pay protections for American workers in a meaningful and effective way.”
The Colorado Division of Labor provides extensive details on the laws surrounding employee overtime in our state, and the new rule from the DOL provides equal details on ways for employees to be in compliance, some businesses and organizations in the state might find the new rule hard to implement, due to strained resources. Organizations in Colorado like the Colorado Association of Commerce and Industry (CACI) have voiced concerns that the rule can hurt employers, particularly smaller ones, while proponents contend the rule provides the compensation that employees deserve for the hours they put into their work.
If you need legal help, don’t hesitate to contact me at the Law Office of E.C. Lewis, P.C., home of your Denver Business Lawyer. Phone: 720-258-6647. Email: elizabeth.lewis@eclewis.com.
by eclewis | Jun 17, 2015 | Business News
On Monday, June 15th, the Colorado Supreme Court issued its ruling in Coats v. Dish, LLC, this was a high profile case in Colorado symbolizing the clash between Colorado law permitting medical marijuana use, Federal law’s criminal approach to all marijuana use, and employers’ anti-drug policies banning marijuana use. All three of these issues came together in this case between Dish Network and Mr. Coats, a former employee of the company.
Mr. Coats is a quadriplegic who tested positive for marijuana while he was employed as a customer service representative by Dish Network. He defended his use by saying that it was done after work for medical reasons and that it was legal in the state of Colorado, and he stated that he would continue to use medical marijuana. He was subsequently fired, and Mr. Coats filed a wrongful termination lawsuit against Dish Network, claiming that his medical marijuana use was protected by Colorado’s “lawful activities statute.” C.R.S. 24-34-402.5 full text available here.
The relevant part of this law for this case was a portion of section 1:
“(1) It shall be a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee’s engaging in any lawful activity off the premises of the employer during nonworking hours…”
This law is a small exception to the general rule that if you are an at-will employee, then you can be fired by your employer for any or no reason at any time without direct legal consequences. This law protects employees from engaging in lawful activities that they engage in off the employer’s premises during nonworking hours. Note however that there are some exceptions even to this exception where employers may still fire for lawful, off duty conduct, but those were not at issue in this case.
Some news reports covering this story have imprecisely framed the issue. They claim that the CO Supreme Court was ruling on whether or not employees of businesses can use marijuana “off-duty.” This portrayal suggests that anyone who is employed and uses medical marijuana can no longer use it because of the ruling. This is not quite right.
What the CO Supreme Court was actually deciding was whether or not Colorado’s “lawful activities statute,” discussed above, protects employees who use medical marijuana from being fired for using it off the premises during nonworking hours. Ultimately, the CO Supreme Court determined that the word “lawful” in the law is not limited to Colorado law only. Instead, they held that it meant that it must be lawful under Colorado and Federal law, and that since all marijuana use is criminal under Federal law, then medical marijuana use would not be classified as “lawful” under the statute and would not be covered by the statute.
You may be thinking about the recent actions by the Federal government not to intervene in states where marijuana use is legal and how that related to this decision. The CO Supreme Court addressed this in a footnote:
“The Department of Justice has announced that it will not prosecute cancer patients or those with debilitating conditions who use medical marijuana in accordance with state law. Similarly, in December 2014, Congress passed the Consolidated and Further Continuing Appropriations Act that prohibited the Department of Justice from using funds made available through the Act to prevent Colorado and states with similar medical marijuana laws from “implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” Consolidated and Further Continuing Appropriations Act, 2015, Pub. Law No. 113-235, § 538, 128 Stat. 2130, 2217 (2015). However, marijuana is still a Schedule I substance, and no medical marijuana exception yet exists in the CSA. As such, medical marijuana use remains prohibited under the CSA.”
Ultimately, this case means that if an employer fires you for using medical marijuana, the “lawful activities” statute does not protect you, so it is up to the employer to decide if medical marijuana use is acceptable. In practice, this may mean that, employed persons cannot use medical marijuana, but legally speaking, it is up to the employer to make that decision. As a Colorado business, this means that it is up to you to decide how you want to address medical marijuana use by employees, and it appears that this decision has not restricted your authority to manage employee drug use any differently than before this case was decided.
If you have questions about employment laws relating to your business, please contact the Law Office of E.C. Lewis, P.C., home of your Denver Business Attorney, Elizabeth Lewis, at 720-258-6647 or email her at elizabeth.lewis@eclewis.com.
by eclewis | Jun 10, 2015 | Business News
Here in the 10th Circuit, where Colorado is located, it was previously considered a requirement by the courts that discrimination claims under Title VII based on a religious accommodation required the employer to have actual knowledge of the religious accommodation request from the employee or prospective employee. In practice, this would mean that an employee or applicant would have to ask the employer for such accommodation before they could be liable for discriminating against them for this reason. At first glance, this sounds like it makes sense, but in practice, things are more complex. The Supreme Court recently reversed the 10th Circuit’s approach in an 8-1 opinion in the case of E.E.O.C. v. Abercrombie & Fitch Stores, Inc.
You may have heard of some of these cases in the news, as there have been a few. The gist of the facts from these different cases is that an applicant wearing a headscarf, as part of their religious beliefs, was not hired by Abercrombie, despite being qualified. The reason for this was because of the “Look Policy” that Abercrombie has for all of its employees, which prohibits “caps” to be worn by employees (there is no definition for caps in the policy but Abercrombie states this covers anything covering up a person’s head). Note however, that Abercrombie has since altered their Look Policy to allow for such religious headwear.
In the recent case, there was no discussion between the applicant and Abercrombie regarding her wearing the headscarf, other than that she was aware that Abercrombie had a “Look Policy” (but no details of the policy were discussed). The applicant never asked if the headscarf was okay and Abercrombie never asked the applicant if they would be wearing the headscarf on the job. Abercrombie simply assumed that the applicant would be wearing it, and did not hire her, since it would violate the Look Policy. The applicant won in district court, but the 10th Circuit ruled in favor of the employer. The 10th Circuit held that an applicant must communicate the need for a religious accommodation to an employer in order for the employer to be liable for discrimination. On review, the Supreme Court held instead that the need (or presumed need) for a religious accommodation only has to be a motivating factor for their decision not to hire the applicant, and that no actual knowledge of the need for such accommodation is necessary.
What does this mean exactly? No actual knowledge is required? Basically speaking, what the court seems to be telling us is that there is a clear distinction between knowledge and motive, and that employment decisions can be motivated by something, despite the employer not knowing with complete certainty as to its truthfulness. Here’s some insight from the Court’s opinion:
“Motive and knowledge are separate concepts. An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive. Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.”
Here’s an example provided by the Court:
“…suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. If the…employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII.“
What does this mean for businesses? It is simple, do not discriminate based on an applicant‘s (or employee’s) religious beliefs, or even based on religious beliefs that you think they have (even if you don’t know for sure). If you suspect that an applicant (or employee) will need a religious accommodation, and you make an employment decision motivated by this, then you have discriminated against that person under Title VII.
If you have questions about how to go about making employment decisions for your business in compliance with the law, please contact the Law Office of E.C. Lewis, P.C., home of your Denver Business Attorney, Elizabeth Lewis, at 720-258-6647 or email her at elizabeth.lewis@eclewis.com.
by eclewis | May 6, 2015 | IP Law
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:
- Contracts for the purchase and sale of a business or its assets
- Contracts for the protection of trade secrets
- Contracts providing for the recovery of education and training expenses of an employee who has served an employer for less than two years
- 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.
