Denver public school teachers on the verge of strike

For the past year, teachers in the Denver public school system have negotiated with administrators over a new bargained agreement covering their employment with little success. As the current CBA reaches expiration on January 18, employees face a strike vote on the following day. If Denver teachers vote to strike it may leave Denver public schools with the choice to close schools temporarily, replace teachers with short term replacements or bargain to give its teachers appropriate compensation. The final negotiation sessions before the strike take place this week ahead of the expiration of the current CBA. The teachers’ union has already informed the Colorado Department of Labor and Employment of its intent to strike, as required by the Colorado Peace Act.

Denver teachers currently receive compensation through a complicated formula of base salary and bonuses. The existing collective bargaining agreement, like many educational CBAs, includes lanes for salary compensation that reward teachers for continued education and tenure in addition to cost of living adjustments. Additionally, Denver teachers receive bonuses based upon several additional factors, such as teaching in underserved areas and school performance. The bonuses are funded from a local tax initiative for this purpose. Any bargained agreement lacking these bonuses will result in losing access to that revenue for teacher compensation. This compensation program is known as ProComp.

Downtown Denver, Colorado

The divide between the Denver teachers’ union and Denver Public Schools

The Denver Public School system and the Denver teachers’ union (Denver Classroom Teachers Association) remain at odds over several basic issues. The Denver teachers’ union wants to increase funding for compensation, simply the compensation structure, move more funding into base pay rather than bonuses and create salary lanes making it possible for ambitious teachers to earn $100,000 in compensation. The Denver Public School system, like any employer, wants to add far less to teacher pay and maintain the bonus structure. This represents an extremely common divide in labor law negotiations.

The Denver teachers’ union is not fighting for more pay for the sake of simply increasing member compensation. Denver teachers are underpaid compared to surrounding districts and face higher costs of living to live in the same district where they teach–even with regular cost of living pay adjustments. This has the result of driving successful teachers out of Denver schools and into other surrounding Colorado districts. It also causes many teachers to have to live outside of Denver, increasing their commute and diminishing their ownership of the success of their schools. The lack of financial predictability in pay also makes it harder for teachers to plan appropriately for their financial future.

Denver school administrators talk a good game about wanting to improve these problems but so far fail to put enough of the district’s $1 billion budget towards one of its most important assets. Predictably school officials want to maintain a complex formula based on bonuses because it forces teachers to absorb the consequences of administrative failings by tying their compensation to school success. It also has the effect of reducing overall compensation by preventing teachers from accumulating an increasingly higher salary over time. 

These are not hypothetical problems justifying improving Denver teacher pay. Comparisons of compensation structures between Denver and other school districts reflects underpaid Denver teachers. The high turnover of teachers as they flee Denver for more pay is not hypothetical. It is a real and statistically proven problem. High turnover creates several problems for the Denver school district:

  • Schools lose institutional knowledge of the students at the school and loses long term bonds with the local community;
  • Teachers with the best qualifications are able to find better paying jobs elsewhere, lowering the quality of teachers remaining in the schools;
  • Tenure of teachers at Denver schools declines which reduces the level of experience from which younger teachers can learn;
  • The Denver district spends more resources recruiting and training teachers which are lost as teachers leave for other districts, making each teacher more expensive despite not increasing compensation; and
  • Teachers have less incentive to invest personally in the performance of the school when they expect to leave in a few years for another district.

Why Denver teachers should strike if Denver Public Schools cannot agree to a fair negotiation package

Denver teachers deserve a fair compensation structure for their work that reflects their value to the community. If teachers are expected to be professionals working in a major city then they should be appropriately compensated as such. Denver school administrators should treat the investment of public resources into recruiting and training teachers as an important investment in the city. A compensation structure that treats teachers as fungible and a burden to the city does not improve Denver schools.

Teachers in Denver should strike if a fair agreement cannot be reached. Denver school officials will feel no pressure to move the terms of their proposal as long as they feel teachers will eventually cave. A labor strike will put school officials on a clock to figure out how to deal with the problem or face a school district without teachers. It will also add publicity to the dispute and motivate parents to push the district towards finding a solution. Teachers around the country face similar problems (including the extremely similar situation currently in Los Angeles). Each union that strikes over unfair compensation will put the next district on notice that it needs to deal fairly with the union or face similar consequences.

Advertisements

Colorado Labor and Employment Law 2019 Outlook

Predicting twelve months of legal changes, even in labor law or employment law, is a tough game in 2019. We have an unpredictable White House, a recent change to the U.S. Supreme Court and turnover in the U.S. House and Colorado Senate in favor of Democrats. It may simply be too early to tell how 2019 will treat Colorado, if only because we do not even know what bills legislators will submit to the federal and state legislatures. That said, we can look at the changes for 2019 in existing federal and Colorado law and at least set up some basic predictions about how labor and employment law may change for Coloradans this year.

Changes to federal labor law and employment law in 2019

Federal employment law changes are already on the books for the administrative agencies. Executive Order 13658 increases minimum wage for federal contractors to $10.60/hour (or $7.40/hour for tipped employees who suffer the tip credit). Beginning January 14, 2019, 45 C.F.R. § 147.132 and 45 C.F.R. § 147.133 allow certain private employers to opt out of federally required contraceptive coverage if the employer has a sincere moral or religious objection to covering contraceptives on the employer’s health insurance plan.

Additionally, the EEOC published new rules on wellness program incentives that take effect on the first day of 2019. Previously employers were permitted under EEOC guidance to grant employees up to a 30% discount on health insurance premiums if the employee participated in an employer-sponsored wellness program without violating the Americans with Disabilities Act (ADA) or Genetic Information Nondiscrimination Act (GINA). In late 2018 a federal district court ruled the incentive rules could render a wellness program involuntary and run afoul the ADA and GINA.

Changes under Colorado labor law and employment law for 2019

Colorado state law will also see a significant change. Beginning January 1, 2019, a minimum wage increase goes into effect. In 2016 Amendment 70 to the Colorado Constitution was passed by voters establishing a new minimum wage regime for the state. Each year through 2020 minimum wage increases by a fixed amount. Subsequent years will increase with inflation. The 2019 Colorado minimum wage is $11.10/hourly. (Read here to learn more about the Colorado minimum wage for 2019 and years forward.) Colorado joins twenty-one other states increasing minimum wage above the federal minimum wage in 2019. 

What 2019 will likely bring for federal labor law and employment law

Predicting 2019 for labor law and employment law is not necessarily an easy task given the changes in the legislature, Supreme Court and the White House. The interplay between Democratic control of the House and Republican control of the rest of the federal government is already on play with the shutdown. Who knows how that will continue to unfold until the Dems put in motion their legislative agenda for the year. The current administration would surprise few to continue to unwind Obama administration DOL regulations. 

Federal shutdown’s effect on labor and employment law

The current federal shutdown is certain to have some effect on federal labor and employment law issues. Although courts remain open through a shutdown, many labor and employment law agencies close, including the EEOC. That can create problems filing administrative complaints for employment discrimination claims, among other administrative remedies. Federal employees in particular who believe they have labor or employment law-related complaints should contact an employment law attorney right away. Do not assume the shutdown of an agency means filing deadlines for complaints are suspended. That is often not the case.

Anti-union activist support

Across the country we should expect to see continued challenges to the validity and activity of public unions. In 2018’s awful Janus decision the Supreme Court trashed public union agency fees and set the tone for anti-union activists that they would find an ally in the current SCOTUS majority. 

Sexual harassment lawsuits

2017 and 2018 saw a rise in sexual harassment lawsuits as part of the #metoo movement and Weinstein effect. These lawsuits are likely to continue through 2019 although new high profile cases may wane with the Supreme Court’s 2018 activity. It’s hard to imagine Brett Kavanaugh’s contentious confirmation hearings was not a serious wound to the spreading belief that the #metoo movement was stamping out the acceptability of sexual harassment.

Perhaps more importantly, SCOTUS decided a trio of cases last year affirming the use of class action waivers in employment arbitration agreements. These class action waivers permit employers to push class actions out of litigation into private arbitration forums where they will avoid publicity of the details of the case, not to mention the final outcome. Employers fearing class action sexual harassment lawsuits likely will add these waivers to their arbitration agreements or review existing waiver to ensure complicity with the Supreme Court opinions. 

Predictions for Colorado labor and employment law in 2019

Colorado labor law and employment law will likely see changes in 2019 as well, particularly with Democrats obtaining control of both houses of the state legislature and the executive. Every legislative session House Democrats propose pro-employee and pro-labor bills that were generally blocked by the Republican-controlled Colorado Senate. Now that Democrats control both houses they should be able to pass many of these bills. We do not yet know what the legislative agenda will include for the Colorado legislature but we can predict two likely areas of labor and employment law that will appear in 2019.

Colorado minimum wage changes

In addition to the constitutional minimum wage change for 2019 across the state, this may be the year Democrats pass legislation to allow cities to set their own minimum wage. Senate Republicans blocked this frequent proposal but now Dems may get their wish to push through more flexibility across the state. Liberal cities like Denver and Boulder are likely to raise minimum wage to $15/hour if given the opportunity. 

Marijuana laws and employment

Denver marijuana employment laws

Colorado has been an important place for the intersection of marijuana legalization and employment, particularly since the 2015 decision in Coats v. Dish Network. Colorado Democrats may push legislation this year to resolve the unfortunate result in Coats by statutorily prohibiting employers from adversely using a marijuana-positive drug test in employment decisions. 

There also appears strong momentum behind proposals to erase pre-legalization marijuana possession convictions. Boulder and Denver indicated intent to make these changes through judicial means. There is also a lot of talk among Colorado legislators to enact state-wide legislation erasing these convictions. That could substantially help workers in the job market held back by marijuana possession convictions. 

 

401k and 403b hardship distribution rule changes proposed by IRS

Earlier this month the IRS released its final draft of proposed regulation changes that will incorporate statutory provisions of the Bipartisan Budget Act of 2018 and Tax Cuts and Jobs Act of 2017 that will have the effect of relaxing the rules on 401k hardship distributions. These proposed regulations extend existing permitted safe habor hardship distributions for 401k and 403b retirement plans. The proposed regulations will become final, subject to potential changes, after a sixty day comment period. It is highly likely that these regulations will become final regulations with little change.

Much of what has been written on these proposed changes by employment lawyers focuses on the effect to employers and plan design moving forward. While employers should consider how these regulations will affect their operations and plans, there is also an effect on employees and other plan participants to consider. Today’s post will look at how these proposed hardship distributions changes will affect employees and their 401k plan benefits.

For a primer on hardship withdrawals, review this post from earlier in the month.

Background on hardship withdrawal changes

401ks and other employer-sponsored retirement plans in the private sector are primarily governed by the Employee Retirement Income Security Act of 1974 (ERISA) which is further defined by a series of Department of Labor and Department of Treasury regulations. When Congress amends ERISA through statute it often requires regulatory changes to reflect the new statutory framework. Here regulatory changes are required due to statutory changes in the Tax Cuts and Jobs Act of 2017 and the Bipartisan Budget Act of 2018. (Specifically, the latter statute cures some of the unintended 401k effects of the earlier statute.)

Initially some plan administrators viewed the statutory changes as voluntary changes they could elect to adopt for their plans; however, regulatory changes in the proposed regulations make it obvious these changes are mandatory and plan administrators must amend plans to conform to the new rules for 401k plans and 403b plans.

Changes to 401k hardship withdrawals

The new regulations deal with safe harbor provisions of hardship withdrawals and rules around procedural aspects of hardship withdrawal eligibility. Today many hardship withdrawals are available under IRS regulations for safe harbor reasons which are strictly defined. Participants may only receive hardship distributions for the amount of the loss under one or more safe harbor reasons but before taking the distribution the participant must exhaust all other loan and withdrawal options from the plan. The participant can only receive a hardship withdrawal under safe harbor rules from his or her elective deferrals and must cease deferring wages to the plan for six months. The proposed regulations change many of these restrictions.

The new regulations change safe harbor hardship distribution procedures to:

  • Eliminate the six month suspension on employee deferrals. Employees will not stop contributing to their 401k despite alleging a financial hardship.
  • Eliminate the requirement to exhaust plan loans prior to a hardship withdrawal. Often today participants do not want to take a loan and will take the smallest loans possible to satisfy the regulatory requirement. The new regulations remove this often low value procedural requirement. Plans may elect to retain this requirement.
  • Expand sources of hardship withdrawals to include qualified nonelective contributions (QNECs), qualifed matching contributions (QMACs) and earnings on QNECs, QMACs and elective deferrals. This change is optional for plans.

Additionally, the proposed regulations change the safe harbor rules to:

  • Expand tuition, funeral and medical expense safe harbor reasons to include a primary beneficiary of the plan participant. This will greatly expand hardship distributions to include a larger circle of people around the participant.
  • Return the definition of a casualty loss to the participant’s primary residence to its pre-2017 definition. The Tax Cuts and Jobs Act reduced the tax deduction for a casualty loss for a primary resident to those involving a federally defined disaster. This had the effect of substantially reducing the available hardship distributions for primary home casualties. The Bipartisan Budget Act of 2018 returned the broader, pre-TCJA definition for hardship withdrawal purposes.
  • Add a seventh safe harbor provision for expenses incurred following a federally declared disaster in an area designated by FEMA. In the past special IRS regulations or a statute would be necessary to expand hardship withdrawals in the face of disasters like hurricanes. The new regulations will automatically make these hardship withdrawals permissive upon federal declaration of a disaster.
  • Clarifies the standard for plan administrators to approve hardship distributions. Under the new rules plan administrators have clear guidance when a distribution is necessary to satisfy a financial need. The plan administrator would:
    • limit the distribution to the participant’s financial need (including taxes and penalties for the distribution);
    • verify the participant has exhausted all other available withdrawals from the plan (not including nontaxable plan loans);
    • receive a representation from the participant that he or she lacks liquid assets to otherwise satisfy the financial need; and
    • the plan administrator does not have contrary information about the participants available assets.

Changes for 403b plans

403b plans receive all the same changes as 401k plans with two exceptions. Hardship withdrawals for 403b plans cannot include earnings on QNECs, QMACs, or elective deferrals. Additionally, if QNECs and QMACs are held in a custodial account within the plan they are not eligible for hardship withdrawal.

Timeframes to make changes and retirement plan amendments

Assuming the highly probable result that the proposed regulations become final regulations, plan administrators will need to begin making changes to plans right away. Most of the changes must take effect on January 1, 2019 which means plan administrators should already be in the process of amending their plans. Although the regulations may not be final at this time, these changes reflect statutory changes that plan administrators must follow. Therefore, plans should be changed to reflect the regulations even before they become final.

Elimination of the six month suspension on deferrals and the requirement for participants to confirm a lack of other resources to cure a financial emergency may wait until January 1, 2020 for implementation. Plans adopting amendments for January 1, 2019 may consider a single plan amendment for simplicity and cost but may choose to wait.

Additionally, the changes to casualty losses and the seventh safe harbor reason are statutory provisions that are already in effect so plans may extend these hardship distributions for distributions after January 1, 2018.

To summarize the required plan admendments: plans must adopt amendments eliminating the six month suspension; must change the safe harbor rule definitions; and must adopt the minimum requirements to prove a participant’s financial need. All other changes are optional changes.

 

 

 

 

What is a hardship withdrawal from a 401k or 403b plan?

Under the Employee Retirement Income and Security Act (ERISA), a 401k or 403b plan may only permit participants to withdraw funds from the plan under specific rules. For current employee-participants, the distribution rules generally severely limit withdrawals. One common form of withdrawal for employees is a hardship distribution. A hardship distribution is what it sounds like; it is a distribution permitted to help the employee cover a financial hardship with retirement funds. There are generally two types of hardship distributions: (1) facts and circumstances hardship withdrawals and (2) safe harbor hardship withdrawals.

An employer can choose what, if any, hardship withdrawals to permit. An employer may choose to allow no hardship withdrawals at all, or only certain safe harbor reasons. Alternatively, an employer could choose to allow all of the safe harbor rules plus additional circumstances that led to an unforeseeable emergency to the employee.

Safe harbor hardship withdrawal rules

Most plans allow hardship withdrawals under the safe harbor rules which currently allow hardship withdrawals for six reasons. These include:

  • The purchase of the employee’s primary residence;
  • Medical expenses of the employee, the employee’s spouse or other dependent;
  • Tuition and other educational expenses for the next twelve months of postsecondary education for the employee, the employee’s spouse or other dependent;
  • Payments necessary to prevent the eviction of the employee or to prevent the foreclosure of the employee’s primary residence;
  • Funeral expenses for the employee, the employee’s spouse or other dependent;
  • Certain expenses to repair damage to the employee’s principal residence caused by catastrophic damage.

Under the safe harbor rules the employee may receive a hardship distribution under one or more rules of the employee’s deferrals. The employee may not receive earnings or employer contributions (except certain employer contributions prior to 1988). The employee may only receive as much as the employee can document is necessary for one or more of these reasons. The employee must allege to the employer that he or she is unable to satisfy these expenses from another source, such as insurance payments. Current IRS regulations require employees to exhaust all other loan and withdrawals from the plan before a hardship withdrawal and the employee cannot make future deferrals to the plan for the following six months.

Why employers operate under safe harbor rules

These rules create a “safe harbor” under IRS regulations so that the employer or other plan sponsor may permit these distributions without a plan audit questioning the validity of the distribution so long as the employer diligently received evidence of the employee’s hardship and reviewed the evidence for conformity with IRS regulations. The less a plan sponsor goes outside of safe harbor rules with an ERISA retirement plan the less liability it creates for itself. Along with operating outside of safe harbor rules also comes paying for more guidance from employment law attorneys who specialize in retirement plans and other compensation issues. If the IRS audits the retirement plan and finds regulatory violations then the plan sponsor may face penalties and may further attorney’s fees to deal with defending against the IRS and fixing plan problems.

Facts and circumstances hardship withdrawal rules

A 401k or 403b plan sponsor may allow additional or alternative hardship withdrawals based upon circumstances beyond the safe harbor rules. These are often referred to as facts and circumstances hardship withdrawals or unforeseeable emergency hardship withdrawals. The rules for these distributions are similar; however, the plan sponsor determines its own reasons why it will approve a hardship withdrawal. The 401k or 403b plan must provide clear explanation under the plan rules what constitutes these facts and circumstances that permit a hardship withdrawal. A plan sponsor cannot create new hardship distribution rules on the fly for employees even if the employee’s reason legitimately is an unforeseeable emergency that could justify a hardship withdrawal.

For the employee a facts and circumstances hardship withdrawal is similar to a safe harbor hardship distribution. The employee’s ability to request a hardship withdrawal is still limited to the employee’s need and the employee must exhaust other financial options before turning to the hardship withdrawal. The facts and circumstances hardship withdrawal differs in not requiring a six months suspension of deferrals. The employee can receive employer matching contributions and nonelective contributions.

Why employers often do not provide facts and circumstances hardship withdrawals

However, the plan sponsor’s responsibilities under a facts and circumstances hardship withdrawal differs. The sponsor’s liability for mismanagement of the plan is greater because the sponsor must define the hardship and necessary evidence of the hardship for each fact and circumstance. If the sponsor fails to define facts and circumstances that satisfy IRS regulations or fails to objectively and consistently apply those rules then it may face severe penalties for permitting invalid distributions. At a minimum, the cost of administering plan rules beyond safe harbor regulations increases as the plan pays for additional employment lawyer time to design, review and counsel the sponsor on plan administration. Most employers and other plan sponsors try to avoid expanding their attorney’s fees for plan administration.

Colorado 401k lawyers for hardship withdrawals

Why ERISA and IRS regulations limit hardship withdrawals at all

As an employment lawyer who deals with ERISA retirement plan issues I have long heard questions around why ERISA regulates hardship withdrawals at all. These are understandable questions for several reasons. After all, the funds in your 401k or 403b plan are your deferred compensation and funds from your employer earned as part of your overall compensation. Most bank accounts and other savings vehicles allow you to pull your funds at any time, even if at a penalty. Expecting the same from your employer-sponsored retirement plan is not an unusual expectation; however, there are several reasons why federal employment law and your employer’s plan rules limit hardship withdrawals and other distributions.

The primary reason why ERISA and its accompanying regulations limit pre-retirement distributions is to encourage retirement savings. Taking your funds out prior to retirement directly opposes that goal. Permitting a limited range of pre-retirement distributions strikes a balance between helping employees save for retirement and discouraging savings because employees may need access to the funds in the event of a financial emergency. That is why the vast majority of ERISA-governed retirement plans permit at least some hardship withdrawals or loans.

Employers have legitimate reasons to limit active participants from depleting retirement savings. Compliance with other ERISA statutory and regulatory requirements is an important component of operating a retirement plan. Failure to comply with these requirements can result in financial penalties to the plan sponsor and worse, can even result in disqualification of the plan which causes direct financial harm to the participants. Distributions can be a major source of liability for plan administration. They also bear expense on the plan. Distributions are among the more expensive transactions for the plan so the more distributions the plan processes the greater administration expense and the more likely the employer will raise plan fees to account for it. Frequent distributions also require the plan to structure investments to the participants and for management in ways that can be less valuable to participants.

Implications of taking a hardship withdrawal from your retirement plan

A hardship withdrawal may help deal with an imminent emergency but create other complications down the road. Participants considering a hardship withdrawal should carefully consider the drawbacks to taking a hardship withdrawal before submitting a request.

The most obvious potential issue with a hardship withdrawal is that the distribution is taxable to the extent the distributed funds are untaxed. Most retirement funds eligible for a hardship withdrawal will be pre-tax funds subject to ordinary income tax upon distribution. You may have some after-tax or Roth deferrals within the hardship withdrawal that are not subject to taxes. In addition to ordinary income tax, any taxable portion of the withdrawal may be subject to a 10% early withdrawal penalty.

You should consider the tax liability of your request at the time of distribution. Plan rules may allow you to gross up your withdrawal request, meaning you can request an additional amount to cover some of the taxes due on the withdrawal request. The danger here is that if you do not adequately plan for the additional taxes due at tax time you may find yourself rolling one financial hardship into the next one when you pay taxes the following year.

Additionally, under the current ERISA rules, a plan may or must suspend your deferrals to the plan for six months following a hardship withdrawal. A hardship withdrawal will not only deplete your retirement plan of existing funds but may limit your ability to replenish those funds. In certain economic conditions this can severely harm your retirement savings beyond the amount of the distribution. Consider your options to handle your current financial emergency in other ways and how you will make up the retirement savings depleted by your hardship withdrawal.

Similarly, by taking funds out of your retirement plan you may negatively affect your investments or investment strategy for retirement. Some plans include complex investments or investments that require you to pay fees to liquidate them to fund your hardship withdrawal. Consider how your request may incur additional fees or lock in investment losses as a result of your request. In an urgent financial emergency these may be worthwhile risks to accept but down the road you may have wished you dealt with them differently. Some retirement plans allow you to select investments to liquidate for these distributions to minimize these costs. Review your plan documents before submitting your hardship request to see what options are available.

Can an employment lawyer help me get a hardship withdrawal if the plan administrator says no?

Another common question directed to employee rights lawyers is what can be done when a plan administrator denies a hardship withdrawal request. Again, this is a completely normal question. If you need a hardship withdrawal then it is probable that you have a serious financial emergency and need whatever help you can get. The answer to this question depends upon the particular facts in your situation.

Do you qualify under the plan’s hardship withdrawal rules?

The first issue is whether you qualify for a hardship withdrawal under the plan’s rules. ERISA statutory and regulatory rules require plan administrators to administer the plan within plan rules uniformly and consistently. The plan administrator cannot create new hardship withdrawal reasons even if your situation would qualify as an unforeseeable emergency under ERISA. The plan administrator also cannot create different qualification rules for your withdrawal request. For example, the plan administrator cannot allow you to submit less specific documentation than other employees or approve your request for slightly different reasons than what the plan rules specifically permit.

Instead your hardship withdrawal request must fall within one of the reasons specifically described by plan rules and you must provide the documentation of the hardship within the plan’s normal approval procedures. To determine whether you comply with the plan’s rules and procedures an employment lawyer will often need to review the plan documentation against your request documentation. If your request does not fall within the plan rules then your employment lawyer may discuss other options to request a hardship withdrawal or other distribution under the plan rules.

Did my hardship withdrawal request comply with plan rules?

Sometimes plan administrators and their agents fail to process an appropriate request for a hardship withdrawal but often people fail to submit proper requests. Determining what will cure a failed application for hardship withdrawal application is usually not a difficult process if you understand how retirement plans process these requests. Today many retirement plans process hardship distributions without requiring participants to submit written applications or documentation but problems can still arise in processing your request.

In some cases problems arise although the plan received a complete and compliant request. These may come from technical problems processing the application or a manual error by somebody in the midst of processing your request. Sometimes people involved in your employer’s retirement plan do not fully understand hardship withdrawal rules which can cause unnecessary delay. These are situations where an experienced employment lawyer can help you navigate the process by working with your plan administrator to resolve errors in the process.

On the other hand, your request may be deficient because an application was incomplete or the supporting documentation does not adequately support the request. Plan administrators often require specific documents to approve a hardship request and you may not have access to the specific document at this time. An employment lawyer can review your plan rules and work with the necessary parties to cure your application and get the hardship withdrawal approved as quick as possible.

When to contact an employment lawyer in Colorado about a hardship withdrawal?

If your employer refuses a hardship withdrawal request and you cannot resolve the denial with your employer then it is a good idea to talk to Colorado employment lawyers in your area about your situation. Do not delay talking to employment lawyers near you. Many hardship withdrawal situations are time sensitive and you and your employment lawyer may have many steps to take to resolve the withdrawal request. The longer you wait the more difficult it may be to prevent the hardship from becoming a larger problem.

In more troubling situations the plan administrator’s refusal to process a valid hardship withdrawal may signal more serious problems with the plan. The plan sponsor or somebody with access to plan funds may have depleted plan assets or other fiduciary problems may exist with plan administration. The plan administrator’s acts may also be part of a larger problem such as unlawful employment discrimination. These are issues an experienced employment lawyer can explore with you. Talk to a Denver employment lawyer about your retirement plan problems.

Four ways hiring Denver employment lawyers differs from other lawyers

Most people fortunately will never find themselves in a position to need to hire a Denver employment lawyer but if you are on this site you either know you need an employment lawyer or think you might be on a path that will require one. As a result of so few interactions with employment lawyers, it is common and completely understandable to not know how to find a Denver employment lawyer or what it means to hire an employment lawyer.

Hiring a lawyer is not a terribly unusual experience these days. Many people have experience hiring divorce lawyers, criminal defense lawyers for traffic tickets, probate lawyers or maybe even a personal injury attorney for a car wreck or other injury. Aside from personal injury attorneys, employment lawyers work differently from these other attorneys in important ways (and even differently from many personal injury claims). Today’s post will explore four important ways hiring a Denver employment lawyer is different from hiring other attorneys.

Denver employment lawyer

You are less likely to have a personal referral for Denver employment lawyers

One of the most common ways people find and hire lawyers is through personal referrals by family, friends and other people in their lives. This is especially common in areas of law where you are most likely to know somebody who hired an attorney in the past. Examples in this area include divorce lawyers, traffic ticket lawyers, probate lawyers and estate planning attorneys. Personal referrals are useful ways to find lawyers because they come from reputable sources in your life vouching for the lawyer. Sometimes attorney referrals come from other professionals in your life, such as therapists, doctors and ministers.

On the other hand, you are less likely to know somebody who hired employment lawyers in the past so finding those personal referrals are more difficult. There are also fewer professionals with regular contacts with employee-side employment lawyers unless you work with a union. As a result, your search for Denver employment lawyers may rely more on internet research. (See this post for more information about finding Denver employment lawyers.) You might also reach out to attorney referral services through the Colorado Bar Association or the Denver Bar Association.

The fee structure for legal services may differ from what you paid for other legal services

Employment lawyers often charge fees for legal services on structures different from what you may have experienced in the past. Your past experience with lawyers may have been paying on an hourly basis, which is common in family law, or on a flat fee basis, common in estate planning and traffic ticket legal services. Employment lawyers sometimes charge on an hourly or flat fee basis, particularly when the work involves reviewing or negotiating employment contracts and severance agreements.

However, many employee-side employment law work involves pursuing claims through litigation or other dispute resolution avenues. This work can be expensive and most employees in Colorado do not have the funds to pay for employment lawyers on an hourly basis. Instead Denver employment lawyers may offer to work under a contingency fee agreement, what some call a no win-no fee agreement. Under a contingency fee agreement your lawyers work without payment up front and share in a percentage of proceeds collected in your case. Contingency fees are common in personal injury and consumer law cases as well. These fee agreements allow plaintiff-side attorneys to work diligently for plaintiffs and still receive compensation for their work.

Your labor and employment law claims may involve more technical legal expertise

Most individuals hire lawyers for legal services that do not involve complicated legal analysis. Labor and employment law claims often involve complex legal issues which make these issues more difficult than a lot of other common cases. This legal complexity can make your case more difficult and take longer to resolve. That means your need for an employment lawyer with expertise in the issues in your case is greater.

Many other common legal needs may rely more on other expertise such as negotiation skills or familiarity with the way insurance companies resolve claims. That is not to say other lawyers are less equipped or less intelligent. That is not true. Rather, the usual divorce or traffic citation do not involve complicated legal questions as much as complicated fact issues or knowing how to maneuver the applicable system.

Most Denver employment lawyers represent employers or employees—but not both

It is extremely common for employment lawyers around the country to represent only plaintiff-side employees or defense-side employers. Part of what can make finding an employment lawyer right for your situation is distinguishing between the law firms that represent employees from those who only represent employers. It is not necessary to hire an attorney who only represents workers in employee rights cases but you certainly want an employment lawyer who represent plaintiffs. If you search for employment lawyers online then one issue to review is whether the Denver employment lawyer represents employees.

If you believe you need to hire a Denver employment lawyer then you should locate and research lawyers in your area. You should consider several factors in your search but conduct your search and research within a reasonably short period of time. Many labor and employment law issues require you to act within a limited period of time to preserve your claims.

Tenth Circuit rules ADA failure to accommodate claims must prove adverse employment action

This month the federal Tenth Circuit held in Exby-Stolley v. Board of County Commissioners, Weld County, Colorado that a failure to accommodate claim under the ADA must prove an adverse employment action. In a 2-1 decision exploring the divide among federal circuits the majority came down in favor of the employer, extending defensive opportunities to this form of disability discrimination claim. Eventually this issue may rise to the Supreme Court but for now Colorado employees are subject to the explicit holding by the Tenth Circuit in this case.

The facts in Exby-Stolley v. Board of County Commissioners, Weld County, Colorado

Ms. Exby-Stolley was a health inspector for Weld County, Colorado. She suffered a broken arm which made it difficult for her to perform her normal job duties. The parties disagree over the facts that follow.

The plaintiff alleged this set of events. She received a poor evaluation for being behind in work. After disclosing her physical condition she met with her supervisors and human resources. The parties agreed to transition her to part time office work. The pay difference in work hours was made up by workers compensation. After this first meeting, her supervisors’ manager asked plaintiff why she did not take disability and expressed anger that she would not. Eventually plaintiff grew dissatisfied with the part time position and requested a second meeting. At this meeting all of plaintiff’s proposed accommodations were rejected. At the end of the meeting her supervisors’ manager talked to her and plaintiff understood the conversation to mean she needed to resign. Plaintiff met with human resources and looked at other job opportunities and long term disability. Days later, plaintiff sent an email to colleagues announcing her resignation because she could not perform her job duties.

Weld County, Colorado alleged similar events with some key differences. The employer alleged at the second meeting plaintiff requested a job should be created for her out of the job duties she could do and that she could not perform all of the normal job duties of her position. Nobody recalled discussing resignation. Instead, no final decision had been made and the defendant expected to continue the interactive process to accommodate her disability.

At the conclusion of a five day trial the jury sided with the employer. Plaintiff appealed that the trial court improperly instructed the jury that she had to prove she suffered an adverse employment action.

Adverse employment actions and failure to accommodate under the ADA

The appellate court wrestled with whether a failure to accommodate claim under the ADA requires the plaintiff to prove she suffered an adverse employment action. Under the Americans with Disabilities Act, an employer has a duty to provide a reasonable accommodation to a qualified individual with a disability. Failure to provide a reasonable accommodation violates the statute and creates a claim for disability discrimination. Federal circuits disagree whether the failure to accommodate is itself a discriminatory act or whether an adverse employment action must follow the failure to accommodate.

An adverse employment action in employment discrimination law is a serious and material change in the terms, conditions, or privileges of employment. The meaning of this term is well analyzed in employment discrimination law. Whether an employer’s act qualifies as an adverse employment action is fact specific and may be a disputed issue in the course of litigation.

Disability discrimination claims in Colorado

The majority opinion holds an adverse employment action must follow the failure to accommodate

The majority rests its position primarily upon analogizing failure to accommodate claims to disparate treatment claims under the ADA and other federal employment discrimination statutes. The majority fills in the ADA statutory language with analogies to Title VII and case law to assert the statute requires proof of an adverse employment action. It indicates the McDonnell-Douglas framework must be modified to omit the requirement that the employee show he or she was treated less favorably than a non-disabled employee because the failure to accommodate is a discriminatory act under the statute.

The majority spends little to no space explaining why its position is correct; instead it devotes time to explaining that it is correct (and why the dissent is wrong) and that the McDonnell-Douglas framework is appropriately flexible to apply here. The majority fails to draw a compelling case why a failure to accommodate claim is sufficiently indistinguishable from a disparate treatment claim or why a failure to accommodate is not itself an adverse employment action.

The majority dismisses contrary case law with much hand-waiving. It dismisses the dissent’s position that prior Tenth Circuit case law disagrees with the majority by insisting opposing prior case law consists of non-binding dicta and crafts alternative explanations for non-dicta contentions. It provides similar machinations to explain away other circuit disagreement. It instead points to cases from the First, Second, Seventh, Eighth and Ninth circuits as agreement with its position.

The dissent

The dissent alternatively distinguishes between failure to accommodate claims from disparate treatment claims. The dissenting judge asserts failure to accommodate are uniquely different types of claims in which the failure to accommodate serves as an adverse act by itself. The dissent relies upon prior Tenth Circuit opinions distinguishing the two types of claims in addition to agreeing circuits of the Third, Fifth and Seventh.

While the dissent raises a less tortured analysis of binding and persuasive precedent, it also fails to make a compelling case why not requiring an additional adverse employment action makes sense within the objectives of the ADA. It makes more sense for the dissent to draw a brief argument that binding precedent requires an alternative result to the majority; however, an argument why precedent is correct certainly could have helped.

Where Colorado employees go from here

Until the Tenth Circuit or Supreme Court revisits this opinion, employees in the Tenth Circuit are stuck following the majority’s position here. It’s unknown whether the plaintiff will request a rehearing en banc to let the entire court hear the case or ask the Supreme Court to weigh in. The apparent circuit split on this issue will almost certainly be addressed by the Supreme Court at some point soon but that may be years away.

The biggest problem with the majority’s position is that it forces disabled employees who are denied reasonable accommodations to endure the absence of an accommodation until the problem compounds into something a court might agree is an adverse employment action. In between the failure to accommodate and the adverse employment action, disabled employees are likely to fall behind at work and generate a less favorable reputation for his or her work that will not be cured simply by remedying an adverse employment action. The long term implications go far beyond the immediate adverse employment action. The mere refusal to provide a reasonable accommodation in many cases results in a less favorable employment situation than the disabled employee’s able colleagues. That is the type of discriminatory impact laws like the ADA were enacted to combat.

From a litigation standpoint the majority’s position makes cases more difficult for employees. Requiring the employee to prove an adverse employment action gives employers two additional defensive opportunities. First, employers obtain the opportunity to assert the alleged adverse act fails to meet the legal threshold to qualify as an adverse employment action. This helps employers in close cases where the adverse act is less obvious, like a termination. Second, it gives employers the opportunity to allege the adverse employment action occurred due to a non-discriminatory reason. That puts employees in the strange position to argue the employee underperforms and every possible reason for underperformance relates to the unaccommodated disability.

Pursuing failure to accommodate claims with Denver employment lawyers

The decision in Exby-Stolley will make pursuing failure to accommodate claims under the ADA more difficult and more necessary to hire a Denver employment lawyer to represent you. Employees with failure to accommodate claims will have to look closely at what adverse employment action occurred and properly allege it in the lawsuit. Plaintiffs may allege under the ADA that the failure to accommodate deprived the employee of enjoyment of the benefits of employment as an adverse employment action but it is not yet clear how the Tenth Circuit will treat those arguments. Each of these claims must be carefully reviewed and alleged from the administrative charge through filing a lawsuit.

Experienced employment lawyers in Denver, Colorado can make it an even battle on your behalf. If you believe your employer failed to reasonably accommodate a disability then you should talk to a Denver employment lawyer right away. What you do from the beginning may help avoid a difficult situation at work or help prepare a strong case from the outset. You also may need to begin work on your case right away due to time limitations under the ADA and state law. Failure to act properly within these time limits may impair your ability to pursue a meritorious case. Talk to Denver employment lawyers about your workplace situation right away.

 

What is considered a living wage in Colorado?

Living wage has been a growing issue in labor politics and economic discussions in this country, particularly as unions and other worker groups began aggressively championing raising minimum wage over the past few years. Living wages are of concern here in Colorado as rent and home prices soared over the past decade. When living costs in Denver and other Colorado cities exceed local wages it prices workers out of their homes. Rising costs partially drove the push to increase Colorado minimum wage; however, minimum wage often fails to provide a living wage for Colorado workers. Today’s post will explore what is considered a living wage in Colorado and some of the legal concerns that arise in the debate.

What is a living wage?

A living wage is the hourly rate an individual must earn to support his or her family when that person is the sole provider and works full time. Living wage is not the same thing as minimum wage. Minimum wage is a minimum amount an employer may pay to an employee covered by the minimum wage law for work. Living wage considers the costs to that family to meet their minimum needs for self-sufficiency where the family lives. These costs change across regions rather than assume equal costs across the board. Note that a living wage is not a calculation of the wage necessary to live comfortably or move up the economic ladder.

Typically economists calculate living wages in light of the size of the family supported by the sole provider. For example, a Colorado employee without a significant other or children needs to earn far less than an employee supporting a family of four. This is for obvious reasons. Feeding four people costs more than one. Therefore, living wage varies not only by location but also by the size of the family supported.

Living wage in Denver, for example, requires a single employee to earn $12.95 which is above the current minimum wage. If that employee supports another adult and two children that number rises to $28.01, almost three times minimum wage. See your local living wage calculated using this calculator from MIT.

Colorado labor law final paycheck infographic

Colorado minimum wage vs. living wage

Minimum wage laws began as a way to end sweatshops and require employers to pay a living wage. Generally over time minimum wage laws in the United States failed to keep up with living wage requirements. Federal minimum wage set by the Fair Labor Standards Act is far below the living wage calculated in most parts of the country. Twenty-nine states have state minimum wages higher than federal law, including Colorado. Amendment 70 to the Colorado Constitution set minimum wage on a stair step to 2020 when increases tie to inflation.

Employees earning the Colorado minimum wage may still not reach a living wage. Considerations for calculating living wage include home prices, rent costs, utilities, food, transportation and healthcare. Although these are basic costs they do not include many expenses that Colorado employees may face. Nor do they include other financial considerations like retirement savings or entertainment.

Considerations for Colorado living wage

A living wage is not uniform across Colorado. Basic family expenses vary considerably across the state. For example, rent and home prices in Denver are far more expensive than most rural parts of Colorado. As expenses increase, so too does the living wage required to afford those expenses. Living wage is not always a linear increase with the urban density. For example, the Colorado Springs metro area requires only a slight decrease from the Denver metro area. Generally, however, urban areas are more expensive than rural areas in Colorado.

An important issue in Colorado is that living expenses are increasing at a rapid rate compared to wages. Studies of government data reflect living expenses increased three times as fast as wages. You can easily see how this happened with the explosion of both home and rent costs compared to even the increase in Colorado minimum wage. This is not a Denver problem. Growth in other large Colorado cities like Greeley, Loveland and Pueblo face the same struggles. Urbanization is not the only factor driving higher living costs. Many mountain communities have high living wages due to expensive housing costs, particular around tourist destinations.

A living wage in Colorado

Colorado employees must consider their location and how local cost variance affects their ability to support their families. The size of the family and location are key issues in self-sufficiency. An individual employee in Colorado needs to earn between $10.75 and $13 hourly just to sustain basic living costs. Note that even the lowest cost area of the state is above the Colorado minimum wage. For a family of four the living wage ranges from $24.00 to $29.00 far above the state minimum wage.

Unfortunately two income households do not fare better on minimum wage. In Denver a two income household with no children needs two earners making $10.55 hourly which is still above minimum wage. In lower cost areas a two income household with no children earn a living wage at minimum wage but fall below if they have a child.

This demonstrates how financially precarious life can be for many Colorado families. Lost wages or a lost job can send a family already struggling to meet their basic needs into complete financial collapse.

Legal issues and a living wage in Colorado

Families earning at or below a living wage in Colorado often work jobs at or near minimum wage. They may rely upon working multiple jobs (full or part time) and earning overtime pay. An employer refusing to pay wages earned by employees can have substantial effect on the employees and their families.

Employers who pay non-exempt employees below minimum wage steal from their workers and violate federal and state minimum wage laws. Employees in this situation have rights under federal and state law to recover unpaid wages through administrative or judicial means.

The same happens when employers fail to pay overtime pay owed to non-exempt employees. Employees earn overtime pay under federal and state wage laws. This is a higher rate of pay than minimum wage or the employee’s regular rate of pay. Employees can recover unpaid overtime pay through Colorado administrative procedures or in court.

Employers also sometimes fail to pay wages at all. Some ways employers fail to pay wages owed include:

  • Not issuing paychecks at all;
  • Failure to pay a final paycheck;
  • Shifting hours from one workweek to another to turn overtime hours into regular pay hours;
  • Removing hours from timesheets;
  • Requiring employees to work off the clock during lunches or before/after shifts;
  • Deducting hours or pay for impermissible deductions.

If your employer failed to pay some or all of your wages then you have rights to recover unpaid wages and other relief under federal and state wage laws. These laws may allow you to recover liquidated damages doubling the amount of unpaid wages, out of pocket losses caused by the failure to pay wages, attorney’s fees and court costs.

Additionally, your employer may not retaliate against you for complaining about or reporting unpaid wages. If your employer terminates you or takes other legal action for complaining about unpaid wages or reporting unpaid wages to a government agency then you have rights to recover for lost wages and other harm.

If you believe any of these unlawful acts occurred to you then you should talk to an unpaid wage lawyer in Colorado right away. An employment lawyer can advise you on your rights and how to proceed to receive the wages you earned. Speak to an unpaid wage lawyer as soon as possible. Many wage claims have short periods that require you to act to preserve your claim. The longer you wait to talk to a lawyer the more you risk not receiving the wages you earned.