Halftime Report

By Jessica L. Grimes

The 2018 legislative session kicked off on January 10, 2018 and is already speeding towards the halfway mark.  It’s been a busy start to a session peppered with bipartisan bills targeting gun control, tax rates, regulatory reform, infrastructure, and transportation all against a backdrop of sexual misconduct charges resonating across the nation.  Folded into the chaos are a few bills of interest for Colorado employers:

Landowners’ Right to Enter into Contract Compromised by Snow?

A pair of metro Democrats (Senator D. Moreno and Representative J. Melton) are sponsoring a bill (SB 18-062) that would make void indemnification and defense clauses in snow removal contracts.  Historically, landowners enter into snow removal contracts to ensure that their parking areas and entrances are safe for their patrons during Colorado’s winters.  These contracts permit the landowner to seek indemnification and a duty to defend from the snow removal company in certain contractual circumstances if a patron is injured arising in connection with activities completed under the agreement.  Colorado has long protected the right of sophisticated parties, like landowners and businesses, to enter into contract, but this new bill would eliminate the right of such entities to negotiate risk as it pertains to snow removal.

Currently, the bill is under consideration in the House Judiciary Committee.  While there is no way to know its future success, the bill has passed through the Senate with little fanfare despite active opposition from various Colorado corporations.

If this is ultimately passed by the end of the session (May 9, 2018), the bill would only apply to any snow removal contract entered into after August 8, 2018.

Who is a “Marketplace Contractor” and Why Do I Care? Concept of Independent Contractor Goes Viral

            A workers’ compensation bill (SB 18-171) with bipartisan sponsorship was introduced in the House on February 21, 2018.  This bill – Markertplace Contractor Workers’ Compensation – aims to establish a test to determine whether a marketplace contractor is an “employee” under the Workers’ Compensation Act.  This bill would add a subsection 10 to § 8-40-301, C.R.S.

At first glance, this bill appears to be aimed at Uber and Lyft, but it is not limited to transportation companies advertising on “gig” apps.  The bill also aims at any independent contractor who advertises on an app to provide their services.  Testimony on this bill has been largely favorable and addresses companies like Open Table, AirBnB and other apps advertising “on demand services.”

The effect of this bill, if passed, would be to exclude these types of independent contractors who advertise on “gig” apps to provide their services from the definition of “employee” under the Workers’ Compensation Act.  Much like the exclusion of traditional independent contractors from their inclusion under the Act if certain factors are met, this bill modernizes the concept to current realities of internet business.  The bill is being supported by the technology and business industries, but is being opposed (unsurprisingly) by the Workers’ Compensation Education Association (essentially the claimant’s bar) as it cuts out a large swath of workers who would otherwise fall under the Act.

Currently, this bill is under consideration in the House Judiciary Committee after recently being passed by the Senate.  It appears to be aiming towards overall passage.  If this is passed, the bill go into effect on August 8, 2018.

We will continue to track these bills and other legislative actions touching upon the interests of our clients.  If you have any questions, please contact Jessica Grimes, Esq. at jgrimes@pollartmiller.com.


From the March 2018 Pollart Miller Newsletter