Pub. 3 2013-2014 Issue 2

O V E R A C E N T U R Y : B U I L D I N G B E T T E R B A N K S - H E L P I N G C O L O R A D A N S R E A L I Z E D R E A M S September • October 2013 19 these remedies in cases against employers with 15 or more employees. Banks and other larger employers will, however, for the first time be exposed to liability for these types of damages in cases involving discrimination on the basis of sexual orienta - tion, which is prohibited under CADA but not under federal law. That is also true if an employer fires or refuses to hire an individual because that person is married to or plans to marry another employee (subject to some exceptions), because federal law does not prohibit that type of marital discrimination, while CADA does. Colorado banks should keep inmind that potential liability will now increase in cases of discrimination based on sexual orientation and marital status. Once all of the changes to CADA become effective, many employment law attorneys believe that more employment dis- crimination casesmay be filed in state court under CADA, rather than in federal court under federal laws. That is because federal court judges are widely considered to be more likely than state court judges to grant pretrial motions to dismiss weak claims. If fewer cases are thrown out before trial, the cost of settlement may increase, as employers will then be faced with the cost of litigating cases all the way through trial and the uncertainty of how a jury will decide the case. HB 13-1222 . Titled the “Family Care Act,” this statute ap- plies only to employers who are subject to the federal Family andMedical Leave Act (“FMLA”) and employees who are eligible for leave under the FMLA. Under this new Colorado law, effec - tive August 7, 2013, an employee is entitled to FMLA-like leave to care for a person who has a serious health condition if that person is the employee’s partner in a civil union or in a domes- tic partnership either registered with the state or recognized by the employer. The FMLA does not provide for leave to care for a same-sex partner in a civil union or registered domestic partnership. Although the Colorado law states that it does not increase the total 12 weeks of FMLA leave allowed in any 12-month pe - riod, that may not always be the case. If Family Care Act leave to care for a domestic partner were taken first, that would not qualify under federal law as FMLA leave, so the employee would not be prevented from later taking 12 weeks of additional leave under the FMLA. If FMLA leave is exhausted first, however, that should prevent the employee from taking additional leave under the Family Care Act during the same 12-month period. HB 13-1046. This law provides some privacy protection to employees’ use of social media. It prohibits employers from requiring applicants or employees to disclose their user name or password for any personal account or service through the employee’s or applicant’s personal electronics communications device (computers, phones, etc.), or to change privacy settings, or to allow the employer or his agent to be added to the person’s list of contacts. There are limited exceptions for investigations of unauthor - ized downloading of employer information or to ensure com - pliance with securities or financial laws and regulations. The only remedy provided by the statute is the right to complain to the Division of Labor, which has the power to investigate, issue findings, and impose a fine of up to $1,500 for the first offense and $5,000 for each subsequent offense. SB-018 . Titled the “Employment Opportunity Act,” this statute restricts most Colorado employers’ ability to use con- sumer credit information to evaluate applicants or employees. Significantly for banks, however, that restriction does not apply to any “bank or financial institution.” However, another section of the law does not include an exception for banks. It provides that any employer who relies upon consumer credit information to take adverse action against an applicant or employee is required tomake written disclosure to the employee or applicant of that fact and of the information upon which the employer relied. This is similar to disclosure re- quirements under the federal Fair Credit Reporting Act, but the Colorado law may apply to a broader range of consumer credit information than is covered by federal law. The only remedy provided by the Colorado statute is the right to complain to the Division of Labor, which has the power to investigate, issue findings, and impose a fine of up to $2,500. U.S. Supreme Court Decisions Vance v. Ball State University. In this decision issued on June 24, 2013, the Supreme Court addressed the issue of who con - stitutes a “supervisor” for purposes of an employer being held liable for a hostile work environment. Under fairly technical rules previously established by the Court, an employer is more likely to be held liable if harassment is by a supervisor, rather than just by a co-worker, so the distinction can be important. Tangible employment actions include such actions as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a significant change in benefits. Merely having the power to assign daily tasks is not sufficient.  EMPLOYMENT LAW  continued on page 20