Ban-the-box still bad policy, despite improvements

Monday, April 24, 2017

Significant changes to this year's version of "Ban the Box" (House Bill 1305) have reduced the specter of litigation by potential employees, and for that sponsors Rep. Mike Foote (D-Lafayette) and Rep. Jovan Melton (D-Denver) deserve credit.

However, businesses use questions about criminal history for a variety of reasons - not simply because they don't want ex-cons in the workplace.

Employers ask for criminal history to protect employees and customers and to avoid litigation. Employers often owe a duty of reasonable care to both employees and customers to avoid personal harm to either. Courts often hold employers liable for criminal or intentional harm caused by an employee when, in they eyes of a jury with 20/20 hindsight, it was "reasonably foreseeable" that some type of harm or injury could result from hiring or retaining an employee with a criminal history.

That's why employers use questions about criminal history to fulfill their duty of care to other employees and to customers. And that's why Colorado Civil Justice League remains OPPOSED to HB 1305.


House advances construction lawsuit reform, nixes homeless right to sue

Saturday, April 22, 2017

House State, Veterans and Military Affairs Committee rubber-stamped a bipartisan agreement to make it more difficult for trial lawyers to bullrush homeowner associations into construction defects lawsuits, passing House Bill 1279 (SUPPORT) on a unanimous vote after adopting several amendments.

The bill would require a majority of homeowners in an association to give written consent before a construction lawsuit could proceed. Homeowners would also be fully apprised of the potential costs and risks of litigation. Provisions mandating mediation or arbitration were deleted from the bill.
As a result, Colorado law will continue to allow plaintiffs and their attorneys to collect "phantom damages" on medical bills that do not reflect the true cost of treatment and to receive 8% or 9% interest per year on those claims.
Ironically, one of the witnesses arguing against SB 181 acknowledged that his medical finance business would cease to exist if clients could no longer sue for phantom damages.
Simultaneously, House Local Government Committee endured a 10-hour hearing on a single bill, Rep. Joe Salazar's (D-Thornton) perennial "Right to Rest Act" - aka, the Homeless Right to Sue.
Citing the potential for expansive litigation against local governments, Reps. Paul Rosenthal (D-Denver) and Matt Gray (D-Broomfield) courageously voted against the bill, joined by the committee's six Republicans.
Representatives of cities testified that the bill would strike down bans on "urban camping," thereby depriving the public of safe use of city parks and denying customers access to businesses.
Unpersuaded by concerns of people who want to enjoy clean parks funded by taxpayers and to shop safely, Rep. Salazar took to social media to condemn his own colleagues for not marching in lockstep with his prescription.


House hearings hold key to lawsuit reforms

Wednesday, April 19, 2017

It’s a pivotal week in House committees for several bills - some that would make common-sense reforms to lawsuits in Colorado, others that would create new causes of litigation. 

On Wednesday, House State, Veterans and Military Affairs considers several bills aimed at curtailing Colorado’s lawsuit tax:

Senate Bill 181 (sponsored by Rep. Yeulin Willett, R-Grand Junction) would allow juries to hear evidence that reimbursement costs for medical expenses were actually less than the amount printed on bills from medical providers. The difference between the larger billed amount and the lesser paid amount are “phantom damages” which no one actually owed and no one ever paid. Juries are smart enough to sort this out, if only courts are required to give them all of the facts.

Senate Bill 191 (by Rep. Willett and Rep. Cole Wist, R-Centennial) changes the interest rate on judgments from 8% or 9% to a floating rate of 2% above the Kansas City federal reserve rate. Today, the best investment in Colorado is a lawsuit because interest rates on successful lawsuits pay more than CDs, bonds - even more than PERA. Interest rates should reflect today’s economy - not the economy of the 1970s.

Senate Bill 156 (by Rep. Lori Saine, R-Firestone, and Rep. Wist) requires that, before an HOA can engage in a lawsuit based on construction defects, homeowners must be given information about the costs and risks of litigation; requires mediation before litigation; and requires written consent of at least a majority of HOA members.

Meanwhile, two other House committees consider bills that will lead to more lawsuits.

House Bill 1307 (by Rep. Faith Winter, D-Westminster) creates mandatory family and medical leave insurance. The bill creates several potential “litigation traps” for employers by prohibiting “adverse employment action” against an employee who attempts to take leave. So, an employee who is being discharged or demoted files for leave and then claims discrimination by the employer, forcing the employer to prove that discharge or demotion was due to performance, not related to the attempt to take leave.

While House Finance considers that bill, House Local Government will ponder House Bill 1314 (by Rep. Joe Salazar, D-Thorton) this year’s iteration of the Colorado Right to Rest Act - aka “the Homeless Right to Sue” Bill.

While HB 1314 has been dialed back from previous versions, it continues to create statutory “rights,” like a right for homeless people right to enjoy privacy in public places comparable to that in a private residence. This bill creates a cause of action (and litigation) for anyone who believes that these “rights” are being violated, either by government or private property owners.