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Colorado’s workers compensation requirement might be unconstitutional, at least in part?

An interesting case is winding its way through the Colorado courts.

In Colorado employers of three or more must carry workers compensation insurance. In this case, the employer employed typically between two and four individuals. It failed to carry workers compensation insurance for three different periods of time. When that came to the attention of the Colorado Department of Labor and Employment, the company was fined a whopping $841,200.

The company fired back by challenging the constitutionality of the state’s fines. The fines were issued pursuant to the formulas in Colorado workers compensation laws, CRS 8-43-409(1)(b) and Rule 3-6(D), 7 CCR 1101-3. The company, nonetheless, contends that the fines are “excessive” and therefore in violation of the United States Constitution’s Eighth Amendment.

In this decision, the Colorado Supreme Court ruled that the company might have a case. The court first held that the Eighth Amendment does apply to and protects corporations from excessive governmental fines, not just individuals. Next, the Court outlined the test for analyzing whether a fine is “excessive,” in other words, prohibited. Then the Court remanded the case for further consideration by the Court of Appeals under this new test.

In sum, we hold that the Eighth Amendment does protect corporations from punitive fines that are excessive. The appropriate test to apply in assessing whether a regulatory fine violates the Excessive Fines Clause is the “gross disproportionality” test. In assessing proportionality, a court should consider whether the gravity of the offense is proportional to the severity of the penalty, considering whether the fine is harsher than fines for comparable offenses in this jurisdiction or than fines for the same offense in other jurisdictions. In considering the severity of the penalty, the ability of the regulated individual or entity to pay is a relevant consideration. And the proportionality analysis should be conducted in reference to the amount of the fine imposed for each offense, not the aggregated total of fines for many offenses.

Will the company won under this new approach? It’s too soon to tell. Interested readers will want to follow this case as it continues to be litigated.

Source: Colorado Department of Labor and Employment v. Dani Hospitality, LLC, case no. 17SC200 (Colo. 6/3/19).

Rat balloon soon to be deflated by NLRB?

Bloomberg BNA reports that the NLRB General Counsel is looking to litigate one of organized labors’ favorite forms of protest: A giant inflatable rat. The effectiveness of the baloon is certainly questionnable, but it is equally undeniable that the presence of one draws attention. Often inflated in the back of a pickup truck, parked lawfully at a meter, or simply on the side of a street where a vehicle might otherwise park, these rats typically stand about twice as tall as a human: Usually under any local ordinance’s height limits.

The rats often draw much more attention than protesters might simply standing and handing out information to passersby, and that’s the point: Labor law generally distinguishes between handbilling and picketing. Handbilling is typically seen as pure speech, and as such, protected by the First Amendment, and subject to limited governmental constraints. Picketing is more easily constrained; picketing is subject to strict rules under the National Labor Relations Act for example.

In the NLRB’s 2011 Sheet Metal Workers Local 15, the Board held these rats were more like handbilling than picketing, and as such constitute symbolic speech within the First Amendment. Now, according to Bloomberg BNA, the NLRB General Counsel is looking to re-litigate that holding, contending that they should, instead, be subject to the picketing rules, and/or are at most a form of commercial speech. Commercial speech is generally afforded less protection under the First Amendment, though, in a perhaps curious twist, recent rulings by the Supreme Court seem to be suggesting the Court will afford put it on a higher constitutional footing.

 

What Does ACA Ruling Mean? | Colorado’s Morning News | KOA NewsRadio

Great time this morning on 850 KOA Colorado’s Morning News, discussing the Texas court’s recent ruling, holding that the Individual Mandate in Obamacare exceeds Congressional power and is inseverable from the remainder of Obamacare. Reminder, although the judge has struck down Obamacare, the judge has not yet issued a final ruling. How and whether the Texas court will issue an injunction freezing Obamacare is yet to be seen. Employers should continue to comply with Obamacare at this time.

We discuss this week’s healthcare ruling and what it means going forward.  Does the ruling have an immediate impact on those depending on the…
— Read on koanewsradio.iheart.com/featured/colorado-s-morning-news/content/2018-12-18-what-does-aca-ruling-mean/

Will the Supreme Court’s recent blockbuster in Janus apply to private employers?

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Employers have begun arguing that the Supreme Court’s recent blockbuster decision in Janus should be extended to private employers. In Janus, the Supreme Court ruled government workers cannot be required to pay “fair share” fees, much less union dues. The decision will have a huge impact on labor in America. Effectively, Janus converted government workforces into right-to-work workplaces. The decision is anticipated to strip organized labor of billions of dollars in revenues, much that had previously, in no small part, been used towards political contributions. The Supreme Court reasoned that requiring workers to pay even “fair share” fees, much less dues, was ultimately requiring them to support the unions’ political activities; workers should be free, as part of the constitution speech rights, to decide whether or not to support the unions’ political activities.

Janus was decided under the First Amendment, which only applies to government action. Private workers do not have First Amendment rights in their workplaces, at least as against their employers.

However, one employer is arguing that Janus should be extended to cover private workers nonetheless because, the employer argues, when the NLRB and courts attempt to enforce union requirements for dues and service fee collection, then the NLRB and courts are themselves the government actors. In other words, while the First Amendment does not limit a private employer’s ability to curtail worker speech, it limits the NLRB and courts’ ability to curtail worker speech. The employer already has a pending appeal before the Ninth Circuit, where it has just asked the Ninth Circuit to consider this new argument based on the Supreme Court’s Janus ruling (Communication Workers of America, AFL-CIO v. NLRB v. Purple Communications, Inc., Case Nos. 17-70948, 17-71062, and 17-71276).

The issue is no doubt going to be heavily litigated, but it appears the employer has the better side of this particular argument. If — as we now know from Janus — the Constitution’s speech rights in the First Amendment protect workers against compelled union contributions, they arguably constrain not only governmental employers, but all other governmental actors, including the NLRB and courts, from stripping employees, even private employees, of those same rights.

SCOTUS grants review in Masterpiece Cakeshop case

In a case that pits religious freedoms against anti-discrimination laws, the Supreme Court agreed today to hear the appeal of a Colorado case against a baker that refused to sell a wedding cake to a same-sex couple.  Hear me (Bill Berger) discussing this development on 850 KOA moments after the order.

Source: 062617zor_8759.pdf