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Supreme Court Deals a Major Blow to Workers’ Rights

Elizabeth "Booka" Smith

On June 20, 2013, the United States Supreme Court issued its 5-3 decision in the case of American Express Co. v. Italian Colors Restaurant (Case No. 12-133).  The Court decided that corporations can force small businesses and individuals into arbitration even when it can be proven that they will not be able to vindicate their rights through arbitration.  The Court’s decision is a major blow to employees – from minimum wage workers to high level executives.  The American Association for Justice characterized the decision as giving corporations a “license” to “use the fine print in contracts” to “steal and violate the law” (see AAJ press release).

Justice Kagan, who dissented in the decision, blasted the majority’s interpretation of the Federal Arbitration Act (FAA), noting that “Congress never intended the FAA to be used against America’s workers or to invalidate their substantive legal rights.”  Worker advocate groups including the National Employment Lawyers Association (NELA) are calling upon Congress to enact the Arbitration Fairness Act (AFA) of 2013 (S. 878/H.R. 1844), which would curtail employers’ ability to force workers into arbitration. (Read NELA’s response to the Opinion.)

 

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Colorado Legislature Enhances Remedies for Violations of Colorado’s Anti-Discrimination Act

Elizabeth "Booka" Smith

Despite considerable opposition from business groups, on May 6, 2013, Colorado Governor John Hickenlooper signed into law the Job Protection and Civil Rights Enforcement Act of 2013 (HB 13-1136)(“JPCREA”).  The JPCREA, which has been five years in the making, amends Colorado’s Anti-Discrimination Act (the “CADA”) to enhance remedies for employees of businesses who are subjected to illegal discrimination based on race, color, disability, gender, sexual orientation (excluding transgender status), national origin, ancestry, religion, creed, and age.  Before the JPCREA, Colorado was one of only eight states that did not enable employees of small businesses to recover attorney fees, or compensatory or punitive damages in discrimination or retaliation cases.

Prior to the JPCREA, a successful CADA plaintiff could only be awarded reinstatement, back pay, front pay and interest on back pay.  The JPCREA enhances remedies for CADA plaintiffs in several ways.  First, it allows the court discretion to award a prevailing CADA plaintiff recovery of his or her attorney’s fees (and only allows an employer to recover fees if the plaintiff’s claims were frivolous, groundless, or vexatious).  Second, the JPCREA allows awards of compensatory and punitive damages, subject to caps of $10,000 for employers with fewer than five employees, and $25,000 for employers with between 5 and 14 employees, and for employers with 15 or more employees, the sliding scale of damages caps under federal law will apply.  Third, the JPCREA allows a CADA plaintiff or defendant employer to demand a trial by jury.  Fourth, the JPCREA makes clear that CADA plaintiffs with age discrimination claims are entitled to the same remedies provided by the federal Age Discrimination in Employment Act.

Some of these changes, including the allowance for recovery of reasonable attorney’s fees, go into effect on August 7, 2013, whereas others, including the allowance for recovery of compensatory and punitive damages and the right to trial by jury, do not become effective until January 1, 2015.

Employees who work for smaller employers with fewer than 15 employees not covered by federal civil rights statutes will benefit most from the JPCREA.  With the enactment of the JPCREA, the number of CADA claims in Colorado is expected to increase dramatically.  Moreover, there is expected to be a rise in state court employment litigation, which historically has proved more dangerous for employers than litigation in federal court.

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