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Denver Business and Commercial Law Blog

Colorado earns an 'A' when it comes to business friendliness

The recently-released results of a survey involving more than 12,000 small business owners from around the country suggest that Colorado is one of the best states in the nation for small businesses.

The state earned an "A" for overall friendliness to business in the Small Business Friendliness Survey, which was sponsored by the websiteThumbtack.com and the non-profit Ewing Marion Kauffman Foundation.

Employer Liability for Employee Acts Against Co-Workers

Generally speaking, an employer can be held liable for a supervisor's conduct and even another employee's actions toward other employees. However, while an employer is strictly liable for the behavior of a supervisor; the employer is only liable for a non-supervisor's actions if the employer is negligent in their response to prior complaints. In two separate cases decided in 2013, the Supreme Court of the United States and the Court of Appeals for the Tenth Circuit reviewed the definition of what constitutes a "supervisor."

The Supreme Court set forth a test of what constitutes a supervisor in the case entitled Vance v. Ball State University. Ms. Vance was a long-time employee in the catering department of Ball State University ("BSU"). Over the course of her employment she made a number of complaints of racial discrimination and retaliation, pertaining to another BSU catering employee, Ms. Davis. Ms. Vance filed complaints with the EEOC, and subsequently a lawsuit, claiming that she was subjected to a racially hostile work environment in violations of Title VII. Ms. Vance contented that Ms. Davis was her supervisor and that BSU was therefore strictly liable for the creation of the hostile work environment. However, it was undisputed that Ms. Davis did not have the power to hire, fire, demote, promote, transfer, or discipline Ms. Vance. The district court entered summary judgment for BSU finding that Ms. Davis not Ms. Vance's supervisor. The Supreme Court affirmed the decision that Ms. Davis was not a supervisor and BSU was therefore, not strictly liable for her actions. The EEOC argued that a supervisor status is the ability to exercise significant direction over another's daily work. However, the Supreme Court rejected the EEOC's definition, holding that the proper test to determine whether an individual is qualified as a supervisor requires the following finding: an employer may be vicariously liable for an employee's unlawful harassment only when the employer has empowered that employee to take tangible employment action against the victim. Tangible employment action means to effect a significant change in employment status such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.

Are patents needed to protect marijuana strands?

Intellectual property is an area of law that is based on legally-recognized exclusive rights to things that were invented or created. The rights are recognized by patents, copyright and trademarks, which allow creators to benefit from the use of their creations.

Typically, when we think about intellectual property we think of inventions, books or songs. But it might not be long before strains of marijuana join that list. Recreational marijuana use is now legal in the states of Colorado and Washington, and several other states allow medicinal marijuana use. 

Non-compete agreements on the rise in the U.S.

Non-compete agreements are growing increasingly common in Colorado and the rest of the country. From an employer's standpoint, non-compete agreements are aimed at managing the risks that are inherent to an employee's job change.

Because few employer-employee relationships last forever, there must be a way to sever the relationship while minimizing the risks for both parties. For the business, these risks are heightened if an employee should decide to work for a competing business in a similar geography.

How does the Federal Court interpret Colorado Law Regarding Marijuana Testing in the Workplace?

In a previous blog we discussed the case, Coats v. Dish Network, LLC, wherein the Colorado Court of Appeals held that Colorado's Lawful Off-Duty Activities Statute does not prohibit an employer from terminating the employment of an employee for off-the-job use of medical marijuana pursuant to a license issued under Colorado's Medical Marijuana Amendment 64. In that case, Mr. Coats was terminated after he tested positive for marijuana in violation of Dish Network's drug policy. Mr. Coats argued that his marijuana use was "lawful activity" because it was legal under state law. The trial dismissed Mr. Coats' claims, holding that medical marijuana was not a "lawful" activity because it was still federally illegal. The Court of Appeals affirmed the decision. The Colorado Supreme Court granted certiorari in January 2014 and the case is currently pending.

Colorado new hot-spot for venture capital?

While Colorado isn't exactly considered the epicenter of venture capital investing, talented entrepreneurs and unique companies are beginning to draw more investors in.

A panel of venture capital professionals who have had experiencing working with Colorado businesses explained why at an event last week called the Colorado Venture Summit. The Denver event brought together Colorado-based CEOs from successful startups and partners from out-of-state venture capital firms.

There is no requirement that employers extend medical leave

A federal court recently decided that denial of extended leave for an employee did not violate the federal Rehabilitation Act. The U.S. Court of Appeals for the 10th Circuit, which also hears cases originally tried in the District of Colorado, decided that an employer was not required to extend unpaid leave for an employee after the maximum paid leave period is exhausted. This ruling will likely often have implications concerning cases revolving around the American with Disabilities Act as well.

The plaintiff was a faculty member at a university who had taken leave for treatment of cancer. This employee was granted the maximum six month paid medical leave. However, her request for an extension of this leave was denied and she then sued her employer.

Ridesharing companies soon to come to Colorado

Colorado Governor John Hicklenlooper signed legislation that will allow ridesharing startups to operate in our state. The legislation known as the Transportation Network Company Act sets out a number of rules for which these startups must operate. This new law will make Colorado the first state to address ridesharing in its legislation.

It is claimed that the new legislation is a balance for "openness to new business modalities with the need for limited safeguards." The governor asserts that the bill will only lightly regulate these companies. Background checks will be required for drivers. However, the drivers will only be held to the insurance standards that non-commercial operators must abide by.

Is a Federal Employee Required to Comply with Internal Deadlines Before Bringing a Civil Action?

Employees of the Federal Government have their own internal system and administrative review that must be completed before proceeding with litigation in the civil courts. This internal system includes stringent deadlines for notifying the EEOC of any discrimination or retaliation. The below case affirms that a federal employee must comply with internal deadlines or be unable to proceed with a claim of discrimination in Federal Court.

Ms. Marquez is a program analyst for the Federal Acquisition Service ("FAS") a branch of the federal government called General Services Administration ("GSA"). GSA supplies products and communications for U.S. government offices, provides transportation and office space to federal employees, and develops government-wide cost-minimizing policies, and other management tasks. FAS is one of two Services within GSA, and is responsible for a variety of functions in support of government functions, including procurement of products and services, management of a motor vehicle fleet and disposal of personal property. Ms. Marquez stated that her boss created a hostile work environment on the basis of her race starting in October 2008. On October 28, 2009, Ms. Marquez met with an EEO counselor and on December 31, 2009 she filed a formal complaint of discrimination based on the treatment she received from her supervisor.

Seed funding used to jumpstart e-commerce business

Seed funding occurs when to encourage investment an investor ends up purchasing a portion of the business in return for the money it contributes. This seed money is generally needed in the very early stages of an organization when funds may in particular be in short supply.

For example, a Boulder, Colorado group and other investment networks have now raised $355,000 in seed funding for an out-of-state startup company. The Colorado investor contributed $154,570 with the two other investment companies contributing the remaining amount.