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Dan Pilcher
CACI Senior Vice President
& Chief Operating Officer
Phone: 303.866.9600
E-Mail:
dpilcher@cochamber.com
Friday, March 12, 2010
Bill Seeks to Give Greater Awards to Workers in Employment
Discrimination Lawsuits
HB-1269 increases the money that can be awarded workers who are
suing employers in state court over employment discrimination
claims by allowing them to receive compensatory and punitive
damages.
The House Judiciary Committee passed HB-1269 and sent it to the
House Appropriations Committee. The House sponsor is
Representative Claire Levy (D-Boulder) and the Senate sponsor is
Senator Morgan Carroll (D-Aurora).
The bill creates the “Workplace Fairness and Civil Rights and
Remedies Act of 2010.” It would allow the plaintiff in an
employment discrimination lawsuit brought under Colorado law to
receive compensatory and punitive damages.
According to the bill’s fiscal note, state law currently
provides for front pay, back pay, interest on the back pay,
reinstatement or hiring and other “equitable relief.”
HB-1269 caps the total compensatory and punitive damages. If a
jury tries the case, the court cannot tell the jury about the
caps. And the court can award reasonable attorney fees to the
party that prevails.
For the first year after the bill’s effective date, workers can
only receive compensatory and punitive damages, along with
attorneys’ fees and costs, if the employer has 15 or more
workers. The damage limits for these employers mirror that of
Federal law. Here are the limits:
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Employers with:
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Maximum Overall Damages |
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14 or fewer
employees
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$25,000 |
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15 to 100 employees |
$50,000 |
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101 to 200 employees |
$100,000 |
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201 to 500 employees |
$200,000 |
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More than 500 employees |
$300,000 |
The bill’s fiscal note has 1.1 full-time-equivalent (FTE)
positions costing $75,445 for the 2010-2011 fiscal year and 2.2
FTE costing $163,955 for the following fiscal year at the
Colorado Civil Rights Division.
Under current Colorado law, a worker who believes that he or she
has been discriminated against must first exhaust available
administrative relief before filing a lawsuit against the
employers. The worker has to file a discrimination charge with
the Colorado Civil Rights Division, which is a part of the
Colorado Department of Regulatory Agencies. After the Division
investigates the claim the Division’s Director makes a
determination. If the Division cannot settle the claim, then
the worker can file within 90 days of a determination, dismissal
or receiving a “right to sue.”
Under Federal law, plaintiffs who succeed in employment
discrimination cases may be awarded compensatory and punitive
damages and attorney fees, and this only applies to cases when
the employer has 15 or more workers. The Federal Age
Discrimination in Employment Act, however, applies to employers
with 20 or more workers. Federal law does not allow for
lawsuits involving discrimination on the basis of sexual
discrimination.
Both CACI and the Colorado Civil Justice League (CCJL), with
which CACI is closely affiliated, oppose HB-1269. For more
information on CCJL, visit:
http://www.ccjl.org/
For more information about HB-1269, contact Loren Furman, CACI
Vice President of Governmental Affairs, at 303.866.8642 or via
e-mail at
lfurman@COchamber.com
House Sends Bill to Restructure Board of Directors of Pinnacol
Assurance to the Senate
HB-1009, sponsored by Representative Joe Miklosi (D-Denver),
would restructure the nine-member Pinnacol Board in ways that
CACI considers harmful to the operation of Pinnacol and to the
best interests of the policyholders of Pinnacol’s workers’
compensation insurance. The bill was part of a package of draft
bills recommended last year by the legislature’s interim
Pinnacol Committee. CACI opposes the bill.
The House passed HB-1009 Tuesday on Third Reading on a 33 to 29
vote (with three representatives excused); it has been assigned
to the Senate Judiciary Committee. The Senate sponsor is
Senator Mary Hodge (D-Brighton).
Here are the main features of the amended bill:
·
Requires two employee members of the Pinnacol Board of Directors
to be non-management workers.
·
Adds two additional members to the Board: an injured worker and
the Executive Director of the Colorado Department of Labor and
Employment or his or her representative.
·
Requires that one of the 11 Board members be a physician.
·
Changes compensation for the board from $140 per diem to $250
per day for up to 30 days in a calendar year plus actual and
necessary expenses.
·
Requires the Board to post the date/time/location of Board
meetings on the Pinnacol Assurance Web site at least a week
prior to a meeting and requires time for public comment at all
board meetings.
Here are the concerns that CACI and Pinnacol have with the bill:
·
Non-management workers may lack the knowledge necessary to be
effective Board members.
·
The bill does not adequately define an injured worker.
·
It may be a conflict of interest for the Executive Director of
the Colorado Department of Labor and Employment to serve on the
Board.
·
The bill is a back-door attempt to make Pinnacol a state agency
by imposing the public testimony provision. Stakeholders with
concerns have access to Pinnacol Board members and to management
via other means.
·
Pinnacol is already subject to open meeting laws.
For more information about this bill, contact Loren Furman, CACI
Vice President of Governmental Affairs, at 303.866.8642 or via
e-mail at
lfurman@COchamber.com
CACI Opposes Bill to Require Businesses to Disclose and
Rationalize Economic Development Incentives
HB-1350 has been assigned to the House Finance Committee, but it
has not yet been scheduled for a hearing. The bill does not yet
have a fiscal note.
The intent of Representative Sal Pace (D-Pueblo), the bill’s
sponsor, is to review all of Colorado’s business tax exemptions
and credits and determine whether or not they create jobs.
Representative Pace believes that these provisions should be
eliminated if it cannot be proved that they create jobs.
CACI is strongly opposed to this bill because it would be a
severe blow to state and local economic development efforts to
retain and recruit companies and to encourage job creation. In
addition, it would harm businesses struggling to emerge from the
recession.
Here are the main objections to the bill by CACI and other
business organizations:
·
It requires businesses to justify the tax credits they receive
by (a) filing a report justifying the credit if the credit is at
least $25,000 and (b) paying a fee equal to two percent of the
value of the credit for the administrative paperwork involved.
·
The bill also says that if the recipient hasn’t complied with
the requirements of the tax credit incentive then the Colorado
Economic Development Commission can “recapture” the money.
·
The report must include a statement on the number of jobs
created; payroll data to verify the number of jobs; monthly wage
and benefits of each job; the employer’s health benefits; and a
statement on whether the taxpayer reduced employment at another
site of the same business.
·
This bill is intended to apply to all tax credits
received by any business in the state.
·
The Colorado Office of Economic Development and International
Trade opposes the bill.
The House co-sponsors are the following Representatives: Mark
Ferrandino (Denver), Jerry Frangas (Denver), Sara Gagliardi
(Arvada), Jeanne Labuda (Denver), Dickey Lee Hullinghorst
(Boulder), Claire Levy ((Boulder) and Jack Pommer (Boulder).
The Senate sponsor is Senator Morgan Carroll (D-Aurora).
For more information about this bill, contact Loren Furman, CACI
Vice President of Governmental Affairs, at 303.866.8642 or via
e-mail at
lfurman@COchamber.com
A New Definition of Oxymoron: Advocating Bills Granting Tax
Exemptions to Businesses after Increasing Business Taxes $231.3
Million
Ed Sealover, statehouse reporter for The Denver Business
Journal, has a story in today’s edition of the Journal
entitled
“Democrats push new exemptions in Colorado Legislature”
Governor Bill Ritter recently signed into law nine bills that
will increase taxes on businesses by $231.3 million for the 28
months beginning March 1, 2010.
House Sends Senate Bill to Limit Surveillance of Workers’
Compensation Claimants
On Monday, the House passed on Third Reading HB-1012 and sent it
to the Senate, where it has been assigned to the Senate
Judiciary Committee. The bill’s sponsors are Representative Sal
Pace (D-Pueblo) and Senator Morgan Carroll (D-Aurora).
The bill was amended in the House Judiciary Committee and on the
House Floor during Second Reading. Here are the concerns of
CACI and other business organizations and companies lobbying
against HB-1072:
·
It has a higher standard for admissibility than that which is
required for any other court proceeding.
·
It requires that the treating doctor review the surveillance
with the worker, which can create an adversarial situation
between the doctor and patient.
·
It is highly subjective since there aren't any definitions as to
"reasonable basis," "intrusive," "intimidating" or "harassing."
·
It requires the person conducting surveillance to respond when
confronted by the worekr, which can create a hostile, dangerous
situation.
·
It requires destruction of potential evidence in a criminal
matter no later than five years, whereas the "theft" statute
allows for the statute of limitations to start on the “date of
discovery” of the crime and the “forgery” statute doesn't have a
statute of limitations. Both crimes are often used when
prosecuting workers' compensation fraud and could be charged
later than five years but without evidence could not be charged.
Insurance carriers and employers conduct surveillance of injured
workers in instances where fraud is suspected. If such
surveillance is severely limited, then fraud will likely go
undetected, which will increase costs to self-insured employers
and insurance carriers. In turn, this increased cost will also
be passed on to other companies that pay workers’ compensation
insurance premiums.
CACI has observed that majority-party Democrats seemed most
concerned about the questionable actions of some private
investigators who are hired to carry out the surveillance.
Consequently, CACI believes that the legislature should focus on
the problems concerning the behavior of the private
investigators instead of trying to severely limit surveillance
of injured workers suspected of committing fraud.
CACI members with questions about this bill should contact Loren
Furman, CACI Vice President of Governmental Affairs at
303.866.8642 or via e-mail at
lfurman@COchamber.com
Health-Care Bills Progressing
Note:
the following section was written by Dan Anglin, CACI
Governmental Affairs Representative
Measure to Incentivize Healthy Workers Passes House
HB-1160, the wellness-incentives bill sponsored by
Representative Joe Rice (D-Centennial) passed the House
Wednesday on Third Reading. The CACI HealthCare Council
supports this bill as one of the only measures introduced in the
2010 legislative session that reduces the cost of health
insurance for employers and workers.
HB-1160 allows small-group and individual insurance plans to
offer wellness incentives similar to programs that large
businesses with self-insured plans currently offer to their
employees by removing the restrictions based on outcomes. Under
the bill, an employer may create a wellness plan for workers who
want to quit smoking, lose weight or improve their health
through other similar programs. By creating a wellness program,
an employer will receive a discount on its insurance premiums.
Employees who join a wellness program also will receive a
discount on their insurance premium by participating in the
program or satisfying a standard related to a health-risk
factor.
The bill was amended to address concerns that workers with
medical conditions that prevent them from achieving an outcome
can obtain a waiver from the program, and states that no penalty
can be assessed for not satisfying a standard related to a
health-risk factor.
Plain-Language Bill Amended to Address CACI Concerns
HB-1166, which would mandate “plain language” in insurance
policies, has been amended to address the concerns of CACI
HealthCare Council members who provided the sponsor,
Representative Johns Kefalas (D-Fort Collins) with feedback
about the bill during his appearance at the February HealthCare
Council meeting.
The bill was amended to:
·
Lower the Flesch-Kinkaid readability score to 50 from the
original requirement of 60, which is between a 10th
grade and 12th grade reading level;
·
Reduce the font requirement from 12 point to 10 point;
·
Exempt Federal law or regulation language;
·
Exempt policy language required by a collective-bargaining
agreement;
·
Exempt medical terminology;
·
Exempt words defined in the policy;
·
Require the Commissioner of the Colorado Division of Insurance
to promulgate rules related to the electronic dissemination of
policies and renewals; and
·
Extend the effective date to January 1, 2012.
The HealthCare Council opposed the introduced bill at its
February meeting but will examine the amended bill during its
Wednesday, March 17th, meeting.
Note: The health-care section of the Capitol Report
scores a 30 on the Flesch-Kinkaid chart. This means that the
grade level of this article is 16, which means that a reader of
this section needs to have had four years of college to
understand the content.
House Sends Bill to Create an “All-Payer Database” to the Senate
On Tuesday, the House passed on Third Reading an amended
HB-1330, which would create an advisory committee for an “all
payer database.” The bill was assigned to the Senate Committee
on Health and Human Services. The bill was sponsored in the
House by Representative Johns Kefalas (D-Fort Collins). The
Senate sponsor is Senate Majority Leader John Morse (D-Colorado
Springs).
CACI has taken a neutral position on this bill. The House
Second Reading Floor amendments include:
(1) Adds the following members to the advisory committee:
·
A representative from the mental health community with
behavioral health-data collection experience;
·
Two legislators (one majority party, one minority party ); and
·
Two members from a rural community, or who represent rural
interests.
(2) Creates an All-Payer Database Cash Fund.
(3) Requires fines associated with the measure to be deposited
in to the fund; and
(4) Requires the Administrator to:
·
Seek funding for the database;
·
Develop a plan for financial stability; and
·
Report to the governor and the legislature by March 1, 2011, on
the status of the funding effort.
(5) Declares that if the funding is sufficient by January 1,
2012, the Administrator shall create the database; and
(6) Requires that the database be operational no later than
January 1, 2013.
Bill requiring that reviews of insurance claims be conducted by
doctors moves to House Floor
HB-1234, whose title is the “Fair Settlement of Claims Insurance
Policy” and is sponsored by Representative Dianne Primavera
(D-Broomfield), would require that an insurance carrier use a
physician in good standing, in the same or similar practice, to
deny or delay an insurance claim.
On Monday in the House Judiciary Committee, Representative
Primavera amended the bill to remove third-party claimants. The
bill is on the House Calendar for Second Reading.
CACI’s HealthCare Committee opposes the bill because of the
increased costs associated with requiring active-practice
physicians to review claims. Requiring that the physician who
reviews a claim be of the “same or similar” practice may reduce
the consideration of available alternative treatments, which may
eliminate any potential cost savings.
Additionally, requiring physicians of the same or similar
practice to review claims may increase the number of fraudulent
claims processed because physicians are not necessarily trained
in claims review in the same manner as an insurance carrier’s
medical staff. Fraud prevention by insurance carriers is a
necessary tool for containing the high cost of health care. Any
measure that limits an insurance company’s ability to identify
and prevent fraud may have the unintended consequence of raising
insurance premiums across Colorado for employers and workers.
CACI is working with a number of organizations and insurance
carriers that oppose this bill to prevent its passage by the
House.
Senate sends bill to penalize insurers for “incentivizing claims
adjusters” to the House
Sponsored by Senator Morgan Carroll (D-Aurora), SB-76 is
entitled “Unreasonable Insurance Claims Settlement Practices.”
The Senate passed the bill on Third Reading Tuesday and has been
assigned to the House Judiciary Committee. The House sponsor is
Representative Dianne Primavera (D-Broomfield).
The CACI HealthCare Council opposes this bill because it
addresses a concern that does not exist. In other words, the
proposal is a “solution in search of a problem.”
SB-76 assumes that claimants are denied insurance benefits due
to internal policies of insurers to provide incentives to their
employees to deny or delay claims
This is neither a practice of insurers nor is there any
reasonable proof that any insurers have engaged in this practice
in Colorado. Current Colorado law provides that a person who
believes that his or her insurance carrier has engaged in an
“unfair claim settlement practice” can file a complaint with the
Colorado Division of Insurance or pursue civil action against
the insurer.
SB-76 will prevent insurance companies from investigating
potential fraudulent claims because that could be interpreted as
a delaying a claim. Additionally, the bill does not distinguish
between a justified or an unjustified claim, which may cause
carriers to pay for services not covered in an insurance
contract. SB-76 will increase the cost of health care in
Colorado by removing authority over insurance companies from the
Colorado Division of Insurance and placing that authority in the
courts, which will increase unnecessary litigation and make
insurance unaffordable to more Coloradoans.
For information on health-care bills, contact Dan Anglin, CACI
Governmental Affairs Representative, at 303.866.9641 or via
e-mail at
danglin@COchamber.com
House Debates Bill Targeting Payday Lenders
The House Judiciary Committee Monday passed HB-1351 on a
partisan seven-to-four vote. This morning, the bill was heard
on Second Reading on the House Floor but laid over until Monday
for a vote. CACI opposes the bill.
The bill would limit the annual interest rate on payday loans to
36 percent on an annual basis. It is sponsored by
Representative Mark Ferrandino (D-Denver).
Representative Lois Court (D-Denver) successfully offered an
amendment removing the initiative language that would have
required citizens to vote on whether or not payday lenders
should reduce the interest rate on their loans to 36 percent.
The amendment passed on a seven-to-four vote.
A motion to move the bill to the House Appropriations Committee
failed, despite arguments that the bill will (a) reduce the
Unemployment Insurance Trust Fund based on the loss of jobs in
the payday industry and (b) cause the owners of commercial
properties to lose rental income because so many payday lending
stores would go out of business.
For coverage of the Judiciary Committee hearing by The Denver
Post, click on:
http://www.denverpost.com/legislature/ci_14637600
For more information about this bill, contact Loren Furman, CACI
Vice President of Governmental Affairs, at 303.866.8642 or via
e-mail at
lfurman@COchamber.com
CACI Colorado Prosperity Project Offers Employers an Avenue to
Communicate with Their Workers on Issues, Candidates and
Elections
The CACI Colorado Prosperity Project (CO P2) is a collaborative
effort by CACI and the Business and Industry PAC, known as BIPAC:
www.bipac.org
CO P2 is intended to
provide employers with the tools to communicate with their
workers about state and federal candidates, issues and elections
in a non-partisan, pro-business way. Statistics show that
employees consider their employers trustworthy sources of
information about business issues. Visit the CO P2
Web site to learn how business leaders can help their
workers become more engaged in the political process, register
to vote, identify polling places and learn about business issues
that directly affect their companies:
www.coloradoprosperity.org
Upcoming CACI Council Meetings
Council meetings will be held at the CACI Office beginning at 12
Noon. Council members who would like to sponsor lunches for
Council meetings should contact Misty Fox, CACI Office Manager,
at 303.866-9652 or via e-mail at
mfox@COchamber.com
·
HealthCare Council,
Wednesday, March 17, guests are Senator Shawn Mitchell
(R-Broomfield),
member of the Senate Health and Human Services Committee, and
Representative Cindy Acree (R-Aurora), member of the House
Health and Human Services Committee;
lunch sponsored by Bill Bishop, Lockton Companies LLC, whose
website is
www.lockton.com
·
Labor and Employment Council,
Wednesday, March 24; lunch sponsored by Mark Moses, Outback
Steakhouse, whose website is
www.outback.com
·
Governmental Affairs Council,
Tuesday, March 23; lunch sponsored by
Marie Patterson, AngloGold Ashanti N.A., whose website is
www.anglogoldashanti.com
For the complete meeting schedule of CACI Councils during the
legislative session, visit the CACI Web site:
http://www.cochamber.com/newsandevents_calendar.asp
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