Equal pay for equal work isn’t just a laudable goal. It’s basic fairness, so Colorado law can certainly require it of employers.

On the other hand, Senate Bill 85, as originally introduced by Sen. Jessie Danielson, D-Wheat Ridge, and Brittany Pettersen, D-Lakewood, didn’t focus on basic fairness. Instead, it contained rigid rules and “gotcha” litigation traps that doom Colorado employers to failure, then punish them with costly lawsuits for violations that have nothing to do with discrimination.

For example, each of the following would have constituted unlawful discrimination under the introduced bill:

• •A male hotel clerk in Aspen is paid more than a female hotel clerk in Akron - not because one is male and the other female, but due to differences in the cost-of-living.
• •A female nurse is paid more to work the graveyard shift than a male nurse who works days. That’s because one is paid more to work undesirable hours.
• •A company has a hard time recruiting employees to work in remote parts of the state, so they pay a male sales representative more to work in Springfield than a female doing the same job in Greeley. Employers sometimes pay more for hard-to-fill positions.

These are all legitimate reasons for paying different salaries and have nothing to do with whether the employee is male or female.

At the bill’s first hearing in Senate Judiciary Committee, some practical concerns raised by Colorado employers were addressed. For example, amendments to the bill clarified that liquidated damages could not be imposed if an employer acts in good faith. Also, pay differentials based on geography would be allowed. But much work remains.

Senate Bill 85 still allows an employee to bring a lawsuit without ever filing a formal complaint with a neutral party, such as the Department of Labor (which typically handles wage disputes) or the Civil Rights Commission (which hears claims of unlawful discrimination).

An employer’s first notice of an employee’s complaint could be when served with a lawsuit. That's not fair or reasonable. Other bills (HB 1025, limiting job applicant criminal history inquiries) have accomplished their sponsors’ goals without creating new lawsuits.

Forcing both sides to “lawyer up” right out of the gate is unnecessarily adversarial, particularly since it’s common for disgruntled employees to file dubious complaints against former employers. The Colorado Civil Rights Division’s annual report shows that some 95 percent of employment discrimination claims filed with CCRD are found to have “no probable cause.” The administrative procedure provides for a “cooling off” period while a neutral third-party investigates the complaint.

As Senate Bill 85 moves forward, CCJL is counting on sensible legislators of both parties to recognize that Colorado can require basic fairness toward workers without putting employers in a no-win predicament.

BILLS AT A GLANCE (CCJL POSITION)

CCJL positions are primarily determined by potential for expanding liability or whether legislation is likely to increase or decrease frivolous lawsuits. If no position is listed, CCJL is monitoring bill.

HB 1025 - Criminal History of Job Applicants
Sponsors: Rep. Leslie Herod, D-Denver, Rep. Jovan Melton, D-Aurora
Comments: Commendably accomplishes stated policy goal without creating new lawsuits.

HB 1106 - Rental Application Fees
Sponsors: Rep. Brianna Titone, D-Arvada, Rep. Serena Gonzales-Guteirrez, D-Denver; Sen. Brittany Petterson, D-Lakewood.

HB 1170 - Residential Tenants & Landlord Contracts
Sponsors: Rep. Dominique Jackson, D-Aurora; Rep. Mike Weissman, D-Aurora; Sen. Angela Williams, D-Denver; Sen. Jeff Bridges, D-Greenwood Village.
Comments: As introduced, bill creates incentives for unnecessary litigation by allowing tenant to sue for three times actual damages and awards attorney fees and costs only to prevailing tenant, not to prevailing landord.

HB 1183 - Automated Defebrillator Liability
Sponsors: Rep. Dylan Roberts, D-Eagle. Comments: As introduced, bill requires that any "public place" or public school to accept the donation of an automated external defibrillator (AED) but does not extend Colorado's existing Good Samaritan liability protections to those places or persons who may use the AED.

SB 43 - Increase Number of District Court Judges (SUPPORT )
Sponsors: Sen. Pete Lee, D-Colorado Springs; Sen. Bob Gardner, R-Colorado Springs; Rep. Terri Carver, R-Colorado Springs; Rep. Leslie Herod, D-Denver.
Comments: Consistent with CCJL's mission to attract and retain quality judges who can efficiently and capably adjudicate cases.

SB 85 - Pay Disparities (AMEND)
Sponsors: Sen. Brittany Pettersen, D-Lakewood; Sen. Jessie Danielson, D-Wheat Ridge; Rep. Janet Buckner, D-Aurora; Rep. Serena Gonzales-Gutierrez, D-Denver.
Comments: See above.

SB 109 - Increase Limits on Lawsuit Damages (OPPOSE)
Sponsors: Sen. Steve Fenberg, D-Boulder; Rep. Alec Garnett, D-Denver.
Comments: Increasing limits on damages for pain and suffering claims will increase costs to Colorado families and consumers who will see the value their present insurance reduced and be forced to choose between paying more for the same coverage or simply receiving less coverage.

Nearly one month into the 2019 legislative session, CCJL is keeping a close eye on bills that would create new lawsuits or impose new costs on Colorado businesses and the working families who rely on them.

Here’s a look at emerging bills and issues:

Criminal History of Job Applicants - House Bill 1025 (sponsored by Reps. Leslie Herod, D-Denver, and Jovan Melton, D-Aurora) prohibits employers from excluding people with a criminal history from applying for a job opening. It does not say that employers can’t consider someone’s criminal history, only that those applicants cannot be automatically excluded from applying. Commendably, the bills’ sponsors did not create a new “right to sue” (aka private right of action) as the enforcement mechanism, instead relying on a state agency to investigate possible violations. This is a procedure that others should emulate if they truly wish to address a perceived problem rather than create incentives for more litigation.

Homeless Right to Sue - HB 1096 (Rep. Melton) is the latest iteration of the so-called Right-to-Rest Act. The bill targets local government ordinances which regulate when and where people are allowed to sleep or camp on public sidewalks, in parks or on other public property. It also compares such ordinances to “cruel and unusual punishment” and allows for enforcement via lawsuit.

Add District Court Judges - Senate Bill 43 (Sen. Pete Lee, D-Colorado Springs, and Bob Gardner, R-Colorado Springs) adds 15 new district court judges in several judicial districts around the state. Given the increased demands on our state’s court system, CCJL supports this bill as a means of ensuring that legitimate claims can be handled without needless expense or delay.

Pay Disparites - SB 85 (Sen. Jessie Danielson, D-Wheat Ridge, and Brittany Pettersen, D-Lakewood) is advertised as “equal pay for equal work.” That’s a worthy goal, but the text of the bill, as introduced, sets too many “litigation traps” by treating every conceivable pay disparity as evidence of discrimination - and grounds for a lawsuit. For example, the bill doesn’t recognize that an employer with offices in Vail, Colorado Springs and Akron has a legitimate reason to pay a different salary to managers at those locations based on the vastly disparate costs-of-living in those communities. Another serious concern is that the bill completely eliminates the authority of the Department of Labor to investigate and enforce wage discrimination claims and turns that authority over to the civil litigation system with privately-hired attorneys acting on behalf of aggrieved employees. The bill also creates significant, additional burdens for businesses in terms of job posting requirements and record keeping.

Increase Lawsuit Damage Caps - SB 109 (Sen. Steve Fenberg, D-Boulder) increases the existing limitations on jury awards for non-economic damages (pain and suffering, emotional stress, loss of enjoyment of life) from the current $468,000 (or $936,000 in extreme cases) by adjusting for inflation. While inflation applies to the cost of goods and services, there’s no way to measure the value of intangibles like “pain and suffering.” There is no doubt that this legislation will increase costs to Colorado families and consumers who will see the value of their present insurance reduced and face the cost of paying higher premiums for additional coverage to keep the same protections today.

Anyone wondering why insurance premiums are on the rise in Colorado need look no further than four recent decisions by the Colorado Supreme Court.  Those rulings expand liability and increase litigation costs, so consumers can expect to pay more for insurance coverage.

After all, insurance companies simply set premiums to cover their anticipated costs.

As a result, a new report by the American Tort Reform Association finds Colorado teetering on the verge of becoming a “Judicial Hellhole.”

Liability-expanding decisions by the Colorado Supreme Court coupled with the prospects of a pro-plaintiff legislative agenda has created an unfair and unbalanced environment for those who face lawsuits in the Centennial State. The state appears to be moving in a dangerous direction and if it does not correct course, the Colorado Supreme Court or the state may find itself in unwanted company on next year’s Judicial Hellholes list.

Four Colorado Supreme Court decisions issued in 2018 have exposed insurers to expanded liability, which will lead to higher rates for consumers.

Each of these decisions addressed the responsibility of insurers to promptly pay valid insurance claims. That is a reasonable and common requirement, however, Colorado takes an outlier approach. Under Colorado’s bad faith law, a person can recover the amount of the covered benefit that was improperly delayed or denied, plus two times that value (essentially, triple damages), plus attorneys’ fees and costs.

Read the full ATRA Judicial Hellholes report HERE.

Meanwhile, Forbes' Best States for Business ranks Colorado 8th overall, but 40th in costs and regulations as the state's worsening lawsuit climate (now ranked 35th) becomes a bothersome factor.

DENVER — Colorado Civil Justice League has announced winners of its Common Sense in the Courtroom Awards, given to state legislators who have demonstrated a commitment to curtailing lawsuit abuse.

Awards will be presented at CCJL’s Legislative Awards Luncheon on Wednesday, Oct. 24, at the Denver Four Seasons.

CCJL is the only organization in Colorado exclusively dedicated to stopping lawsuit abuse while preserving a system of civil justice that fairly compensates legitimate victims.

“Common Sense in the Courtroom requires justice for those who have been wronged, balanced by fairness for those who may be wrongfully accused,” said CCJL executive director Mark Hillman.

The best news from the 2018 legislative session was the bills that didn’t pass.Late in the legislative session, two bills were introduced to discourage arbitration – an alternative to litigation that often saves time and money.  The alternative to arbitration?  Hiring a lawyer and filing a lawsuit, of course.

Other bills were introduced to address business practices that result in perceived greed or inequity.  The irony, however, is that in each of these bills the remedy to alleged “corporate greed” was to create new incentives for profiteering by personal injury lawyers.

"At CCJL, we are grateful for the bipartisan support of legislators who understand the importance of an efficient and balanced court system to our state's economy," Hillman said.

Common Sense in the Courtroom Award recipients include:

Today, the Colorado Supreme Court ruled unanimously that a claimant is not entitled to interest on damages if no court action is filed.  The opinion written by Justice Brian Boatright supports the position taken by Colorado Civil Justice League in an amicus brief authored by Lee Mickus of Taylor Anderson LLP.

“We hold that, under the plain language of the (statute), an insured is entitled to prejudgment interest only after (1) an action is brought, (2) the plaintiff claims damages and interest in the complaint, (3) there is a finding of damages by a jury or court, and (4) judgment is entered,” wrote Justice Boatright.

In this case, Joel Munoz was injured in a car crash and reached a settlement with his insurer, American Family.  Munoz asked for interest on the claim, but American Family Insurance declined to pay interest because Colorado law requires interest only after a judgment, not after a private settlement.

The high court's finding upheld an early decision by the Colorado Court of Appeals.

Read the Supreme Court opinion HERE.

Judge Carlos Samour became Colorado’s newest Supreme Court justice earlier this month when he was sworn in to replace retiring Chief Justice Nancy Rice. 

Although most widely known for presiding over the trial of James Holmes for the Aurora theater shooting, Samour has served for 11 years as a judge in the 18th Judicial District, where he was most recently Chief Judge.

“Judge Samour complements Colorado’s Supreme Court both professionally and personally. He has presided over some of Colorado’s highest profile cases in recent history and has distinguished himself, without exception, as being fair and impartial regardless of the magnitude of the case,” said Gov. John Hickenlooper, when announcing the appointment.

During his two terms, Governor Hickenlooper has appointed five of the seven justices on the Court.

With Rice’s retirement, Justice Nathan Coats was selected by his colleagues to serve as Chief Justice.Coats was appointed in 2000 by Gov. Bill Owens.

“Judge Samour has earned a reputation as an efficient, fair-minded jurist by those who have practiced in his courtroom,” said CCJL executive director Mark Hillman.“He is considered to be consistent, thoughtful, hard-working and exceptionally knowledgeable.”

The 2018 legislative session produced much political posturing but resulted in comparatively no meaningful policy accomplishments toward reducing litigation in Colorado.

Two bills introduced late in this legislative session purport to protect employees – specifically female employees – from wage discrimination.  Instead, House Bills 1377 and 1378 paint a target on the Colorado businesses and invite trial lawyers to unleash a new wave of litigation against them.

HB 1377 (sponsored by Reps. James Coleman, D-Denver, and Brittany Petterson, D-Lakewood) would prohibit “seeking” information about a potential employee’s salary history.  But what makes this bill so exceptionally misguided is that it makes asking for that information a violation akin to illegal racial or gender discrimination.

That’s right – the sponsors of this bill believe that merely seeking information about a potential employee’s salary history is tantamount to refusing to hire someone because of their race or gender.

By defining salary history as a discriminatory practice, the bill creates an incentive for trial lawyers to sue employers, seeking a wide range of monetary damages, including punitive damages, and automatically forces employers to pay attorney fees and costs to any prevailing plaintiff.

Prevailing employers aren’t automatically entitled to recover their attorney fees and costs.  Even if a business has done nothing wrong, defending against a baseless lawsuit is costly!

If there was any doubt that these bills are far more about enriching trial lawyers than eliminating any pay disparity, HB 1378 should dispel them.  Sponsored by Rep. Jessie Danielson, D-Wheat Ridge, and Sens. Kerry Donovan, D-Vail, and Rhonda Fields, D-Aurora, this bill removes the authority of the Department of Labor to penalize employers that pay women less than men for performing the same job and instead uses private litigation for enforcement.

And just as with HB 1377, it gets worse!  Next, the bill mandates that every business in Colorado must follow a specific legal procedure before promoting any of its employees.  No matter how many employees and no matter what the job, the proponents of this bill believe the State must micromanage day-to-day operations of private businesses – the economic engine of our state.

If this bill becomes law, an employer couldn’t simply give a promotion to a deserving employee – including a female employee – without first advertising the opportunity for promotion to all existing employees.

In the past year, Colorado has fallen to its worst alltime ranking (36th) by the U.S. Chamber of Commerce Lawsuit Climate Index. Legislation like this shows that it could get worse!

Anti-business extremists at the State Capitol would have Coloradans believe that giving up their "right to sue" in exchange for a more efficient, less adversarial process of dispute resolution is somehow playing into the hands of "big corporations." 

In fact, consumers and businesses alike have often found arbitration to be a better way to resolve disputes than long, drawn out lawsuits in which the only real winners are the lawyers who rack up hundreds of billable hours.

House Bills 1261 (sponsored by Rep. Mike Weissman, D-Aurora) and 1262 (Reps. Dominique Jackson, D-Aurora, and Dylan Roberts, D-Eagle) purport to bring "fairness" and "transparency" to arbitration proceedings.

In reality, they would make Colorado's arbitration system just as big a mess as our state's system of civil courts.

Many business contracts require arbitration as a means to settle disputes, rather that lawsuits. That's a choice that businesses and consumers deserve to make for themselves - without unnecessary meddling by politicians.

Arbitration can be cheaper and faster for both parties in a dispute, reducing costs for the largest driver of litigation costs - attorney fees. Arbitration can also be more flexible, less complex, more private and less hostile than endless litigation.

Instead, HBs 1261 and 1262 will make arbitration more difficult and more expensive by inviting litigation against arbitrators.

These bills are also likely to erode modest gains made by the Legislature last year to make it easier for homeowners and builders to resolve disputes over home construction problems and to reduce litigation costs that drive up home prices.

HB 1261 creates new standards for "impartiality" in an environment in which the Colorado Uniform Arbitration Act, case law, Colorado Rules of Professional Conduct, and private contractual standards already establish ethical requirements on arbitrators. This isn't solving a problem. Instead, it's creating one!

HB 1262 creates disclosure requirements that violate contractual confidentiality provisions that typically benefit both parties in a dispute. The bill also creates a cloud over any contract containing an arbitration clause because, U.S. Supreme Court precedent strongly suggests, it will be preempted by the Federal Arbitration Act.

It is important to note that judges and courts do police arbitrator impartiality by reviewing arbitration awards. A party that believes an arbitrator to be biased can ask a court to vacate the award. Ironically, these protections do not apply for judges who preside over lawsuits.

These bills would harm consumers by making arbitration more expensive, thereby leaving consumers at the mercy of trial lawyers and a costly, over-crowded civil litigation system.

Colorado Supreme Court unanimously ruled that claims for disputed wages must be filed within the statute of limitations (either two or three years) and that the clock starts ticking "on the date that each set of wages first became due and payable—not on the date of separation."

The opinion, written by the court's newest member, Justice Melissa Hart — Yes, we were pleasantly surprised! — largely echoes the salient points submitted by CCJL in a friend of the court brief, authored by Chris Ottele and Sonia Anderson of Husch Blackwell, and which was joined by the Denver Metro Chamber and Building Jobs 4 Colorado.

As summarized by a blog:

The plaintiffs in Hernandez v. Ray Domenico Farms, Inc.had sought to exploit an unusual feature of the Colorado Wage Claim Act (the Wage Act). It allows employees to bring suit for unpaid wages under two separate provisions, depending on whether the employee is currently employed or no longer employed. Plaintiffs in this case had reasoned that the provision that applies to former employees revived claims that were time-barred under the provision that applies to current employees. If true, former employees could bring suit for unpaid wages dating to the beginning of their employment, possibly 20 or 30 years ago. 

[...]

On behalf of the Colorado Civil Justice League and other business interests, Husch Blackwell attorneys filed the only amicus brief in support of the employer. The Supreme Court’s opinion agreed with each of the positions set forth in Husch Blackwell’s amicus brief and disagreed with the briefs of the plaintiffs, their amici and, with respect to at least one issue, even the defendant employer.