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Employment Law

Colorado Secure Savings Program: Colorado’s New Retirement Program for Everyone

Colorado Secure Savings Program: Colorado’s New Retirement Program for Everyone

Amanda Milgrom

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Colorado’s new, but not yet implemented, government-sponsored retirement program is causing employers consternation. Although the state has not promulgated the formal rules have yet, let’s dive into what we know so far.

In 2023, Colorado will roll out its first government-sponsored retirement program, the Colorado Secure Savings Program (“Program”), established in Senate Bill 20-200. While Colorado employers still have the option of sponsoring their own retirement plan, they must enroll in the Program if they choose not to do so. The Program was founded based on years of research conducted by the Colorado Secure Savings Board in the Office of State Treasurer, who found that a state-facilitated automatic enrollment individual retirement account program would be the best option for Coloradans.. In response to these findings, the Program was created. It will be administered at no cost to employers, and the retirement accounts will be funded by employee wages.

To be eligible for the Program, an employee must be 18 years or older, have been employed by a Colorado employer for at least 180 days, and earn taxable wages in Colorado. Employees will be enrolled automatically in the Program, but they will have the choice to opt out. The default rate to be withheld from each paycheck is 5%, with an auto escalation each year. An employee can adjust that percentage as they desire.

The Program, at least at first, will only apply to businesses with 5 or more employees during any calendar year; have been in business for at least two years; and not offered a qualified retirement plan in the preceding two years.

Employers can face noncompliance, such as failure to enroll eligible employees, of $100/eligible employee per year (up to max of $5,000 annually).

Self-employed individuals and 1099 contractors are also eligible to participate in the Program. As more becomes known about the Program, we encourage you to connect with us if you have any questions about what these developments mean for you or need help securing your retirement plan.

ABOUT THE AUTHOR

PARTNER

Amanda Milgrom represents individuals and businesses of all sizes in various litigation matters regarding employment, intellectual property, and business disputes. She practices employment law, representing employees in discrimination lawsuits and counseling employers on best practices, drafting employee handbooks, and putting together suites of employment contracts.

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Employment Law

U.S. Supreme Court Hears Oral Arguments on Colorado Business’s First Amendment Speech Rights

The U.S. Supreme Court heard oral arguments last month in a case challenging the Colorado Anti-Discrimination Act (CADA) in a scenario similar to the Masterpiece Cakeshop decision of 2018. 303 Creative LLC, a Colorado based graphic design service is seeking to provide wedding website design services but only for opposite-sex weddings due to the owner’s religious beliefs that preclude her from providing the same services for same-sex couples.

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Estate Planning

Should I Consider an Ethical Will?

A Last Will and Testament seems to be on most people’s radar, especially individuals with young children, individuals who have lost a loved one, or just individuals who consider themselves to be “Type A” planners. But what about an ethical will? What is an ethical will and why might you consider executing one as part of your legacy planning?

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Categories
Copyright Law

Copyright Infringement at the 2022 Olympics Illustrates the Broad Scope of Potential Defenders

Copyright Infringement at the 2022 Olympics Illustrates the Broad Scope of Potential Defenders

Amanda Milgrom

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This case leads to an interesting, and important, question: Who can be liable for infringing the artists’ song? How can Heavy Young Heathens name so many companies as defendants in the lawsuit? Could they all be responsible for copyright infringement?

In the case above, both Ms. Knierim and Mr. Frazier will certainly be held liable if Heavy Young Heathens is successful in its lawsuit. But these Olympic athletes likely would not have sufficient assets to cover the judgment in the event of the artists’ success. Copyright owners can seek up to $150,000 per infringement, and direct infringers such as these athletes likely don’t have the assets – so what do the artists do? They look beyond direct liability, to those who might be liable for indirect liability. There are two types of indirect liability: contributory and/or vicarious infringement.

Contributory infringement occurs when someone knowingly induces, causes, or materially contributes to the copyright infringement. Vicarious infringement (frequently applied to employers) does not require knowledge, but instead only requires that the potentially infringing party has the right and ability to, or be in a position to, supervise the infringers and directly benefit financially from the infringement.

Contributory infringement is premised on one’s failure to stop its own actions, which in turn facilitated the third-party infringement. Vicarious infringement is premised in one’s failure to stop a third party from directly infringing. These third-party liabilities are highly fact specific, considering the role of the third party in the action.

Here, Comcast Corporation, NBCUniversal Media, LLC, Peacock, USA Network, and U.S. Figure Skating will all have to spend countless dollars to defend themselves from third-party liability. What are some ways that you can you prevent third party liability in your business?

  1. As an employer, make sure to educate your employees about how they can avoid infringing another’s copyright. For example, if your employee creates PowerPoint presentations or posts on your website or social media, let them know about websites where the images are available for use to the public, such as unsplash.com. The owners of these images have provided them for free use by the public for any purpose.
  1. When hiring a third-party vendor for your business, read the terms of use that vendor. This may be located on the contract or on their website. Consider pushing back on any language where the vendor requires you to indemnify them in the case that they commit copyright infringement.
  1. If you own a website, the Digital Millennium Copyright Act provides a safe harbor – if you remove the potentially-infringing material as soon as you are notified, then the safe harbor will protect you from liability.

If you have questions, or would like to speak to one of our intellectual property attorneys, please reach out to amanda.milgrom@milgromlaw.com or jon.milgrom@milgromlaw.com.

ABOUT THE AUTHOR

PARTNER

Amanda Milgrom represents individuals and businesses of all sizes in various litigation matters regarding employment, intellectual property, and business disputes. She practices employment law, representing employees in discrimination lawsuits and counseling employers on best practices, drafting employee handbooks, and putting together suites of employment contracts.

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Data Privacy

Navigating and Complying with Colorado’s New Consumer Privacy Act

On July, 7, 2021, Colorado Governor Jared Polis signed the Colorado Privacy Act (CPA or “the Act”) into law. With that pen stroke, Colorado joined California and Virginia as the third state to enact comprehensive consumer privacy legislation. While the law does not take effect until July 1, 2023, Colorado businesses would do well to study up on the new law to ensure compliance when it does become active.

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Business & Corporate Law

The Small Business Reorganization Act and Its Prolonged Adoption Through June of 2024

Chapter 11 bankruptcy code generally provides businesses with avenues and protections to reorganize and restructure obligations. This form of bankruptcy is very often more favorable than chapter 7 bankruptcy because it allows business owners to stay in the driver’s seat while attempting to negotiate a plan that complies with the bankruptcy code. In contrast, filing a chapter 7 petition results in full relinquishment of control of the business and the appointment of a third-party trustee whose primary obligation to is to liquidate estate assets for the benefit of unsecured creditors.

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Business & Corporate Law

Beneficial Ownership Disclosure: New Reporting Requirements for Small Businesses

On September 30, 2022, the U.S. Treasury’s Financial Crimes Enforcement Network (FinCEN) issued its highly anticipated Final Rule establishing a beneficial ownership information (BOI) reporting requirement under the Corporate Transparency Act (CTA) of 2019. These rules significantly change the obligations of business entities to disclose previously private information regarding the ownership and control of these entities. The primary purpose of the CTA, enacted as part of the Anti-Money Laundering Act of 2020 is to protect the US financial system from being used for illicit purposes, including preventing corrupt actors, terrorists, and criminals from hiding assets in anonymous shell companies. Background for this rule was addressed in prior blog posts including The Corporate Transparency Act (1/31/22) and FinCEN and Real Estate (8/2/22).

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Categories
Employment Law

Can Vaccination Requirements be Enforced in the Workplace?

Can Vaccination Requirements be Enforced in the Workplace?

Amanda Milgrom
Amanda Milgrom

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As COVID-19 continues to rage across the country, the question of vaccines – and whether they can be imposed on an individual or not – is a hotly debated topic. Folks have strong opinions on both sides of the discussion. Some stand for individual liberties, arguing the individual’s choice is more important. Others argue for the collective, contending that one person’s liberty should not come at the expense of exposing the group. As an employment lawyer, I get a lot of questions from my clients asking whether they can force their employees to get the COVID-19 vaccine. As we’ve written about in prior blog posts, the answer is a qualified yes.

Another way to analyze the question of imposing vaccine mandates is to ask: what would the Supreme Court do? Notably, the Supreme Court was forced to confront this issue back in 1905 during the smallpox epidemic. In Jacobson v. Massachusetts, 197 U.S. 11 (1905), the Supreme Court upheld the authority of states to enforce compulsory vaccination laws. In a majority opinion written by Justice Harlan, the Court concluded that individual liberty is not absolute and is subject to the police power of the state. There, the plaintiff had a bad reaction to a vaccine as a child, and so when the smallpox vaccine was made available, he was fined $5 for not getting it. The case wound its way through the courts until it reached our highest court. There, the Supreme Court declared in a 7-2 ruling that one man’s liberty could not deprive his community of their own liberty (i.e., avoiding disease).

The Plaintiff’s arguments were very similar to those we are hearing today: that the U.S. Constitution protects your right to decide whether to inject a vaccine into your body; that the government does not have the authority to intervene and impose it on you. These challenges have not yet come before a court regarding the COVID vaccine. However, as more employers are imposing a vaccine requirement on their employees, (see Delta Airlines, for example), we can expect that they will. Particularly now that the vaccine has passed full FDA approval. At that time, it will be interesting to see how Courts apply Jacobson and its precedential ruling that a state can impose a vaccine requirement.

While the structure of the Court is quite different today compared to 1905, the Jacobson case offers us significant insight into how a challenge against a vaccine mandate would be handled and can provide employers further assurance that a mandate is permissible under the law.

ABOUT THE AUTHOR

PARTNER & EXECUTIVE DIRECTOR

Amanda Milgrom represents individuals and businesses of all sizes in various litigation matters regarding employment, intellectual property, and business disputes. She practices employment law, representing employees in discrimination lawsuits and counseling employers on best practices, drafting employee handbooks, and putting together suites of employment contracts.

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Miscellaneous

When Shares are Not Cares

As attorneys representing startups, Milgrom & Daskam knows that early-stage businesses often have many needs and not much capital to meet them. This often results in startups bartering for services using whatever currency they have. Sometimes this results in interesting exchanges (two hundred pounds of Valencia oranges in exchange for a logo design being our personal benchmark); more often it results in founders giving away the most freely available form of credit they have—equity in their company.

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Copyright Law

Should You Seek Foreign Intellectual Property Protection?

If you plan to conduct business abroad or have an online business that reaches customers abroad, you should consider seeking international intellectual property protection. Intellectual property protection is often limited to the country where you conduct business and/or where you file for protection with the respective foreign intellectual property office. For example, a U.S. trademark registration will not protect you against trademark disputes that arise in other countries. As another example, a U.S. patent prevents others from making, using, selling, offering for sale, and importing your patented invention in the U.S., but does not prevent others from doing the same in other countries.

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Categories
Intellectual Property

What is the Trademark Modernization Act of 2020?

What is the Trademark Modernization Act of 2020?

Amanda Milgrom
Amanda Milgrom

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Trademark practitioners, it is time to get excited! Trademark applicants? Registrants? You can get excited, too! The United States Patent and Trademark Office (USPTO), the office that decides who can own the rights to a mark, word, or design logo, has proposed long-needed changes to the trademark rules of practice via the Trademarks Modernization Act (TMA).

If you practice trademark law, you are well aware that much of the process can be antiquated, slow, and inefficient. The proposed changes are intended to make the trademark process more efficient and to allow businesses new ways to remove unused marks from the register. The TMA amends the Lanham Act (which governs trademark law) in three key ways, all of which will be discussed in more detail below.

1. New Tools to Remove Inaccurate Claims of Use

The USPTO has proposed two new methods by which an entity can cancel an unused registration: expungement and reexamination. These tools would provide faster and less expensive alternatives to the current inter partes cancellation proceeding before the Trademark Trial and Appeal Board (TTAB).

Expungement – Third parties would be able to request the cancellation of some or all of the goods and services in a registration based on the fact that the registrant never used the mark in commerce in association with those particular goods and services. An expungement proceeding must be requested between three to ten years after the registration date.

Reexamination – Third parties would be able to request the cancellation of some or all of the goods and services in a registration based on the fact that trademark was not used in commerce with those goods and services on or before a particular date. A reexamination proceeding must be requested within the first five years after a registration.

Either of these tools offers a less expensive, less burdensome, and faster alternative to a cancellation proceeding.

2. Proposed Changes to Existing Procedures

New ground for TTAB cancellation proceeding – The proposed changes under the TMA would add a new ground for cancellation: the trademark has never been used in commerce.

Shorter three-month response period for office actions – Under the TMA, applicants and registrants will be required to respond to office actions within three months (instead of the current six-month period). Practitioners, you will likely be excited about this change, as it would promote efficiency in examination and would speed up the registration process significantly.

Third-party submissions during examination (letters of protest) – The TMA would provide statutory authorization for the USPTO letter of protest practice. This practice allows third parties to submit evidence to the USPTO, prior to a mark’s registration, regarding the registrability of the mark. The TMA would set a two-month deadline for the USPTO to act on these letters.

The TMA became law on December 27, 2020, and will take effect on December 27, 2021. It is currently open to the public for comment until July 19, 2021. You can submit comments at www.regulations.gov. Enter docket number PTO-T-2021-0008 on the homepage and click search. Please reach out to Milgrom & Daskam with further questions.

ABOUT THE AUTHOR

PARTNER & EXECUTIVE DIRECTOR

 

Amanda Milgrom represents individuals and businesses of all sizes in various litigation matters regarding employment, intellectual property, and business disputes. She practices employment law, representing employees in discrimination lawsuits and counseling employers on best practices, drafting employee handbooks, and putting together suites of employment contracts.

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Employment Law

Workplace Accommodations for Nursing Mothers

Many women choose to breastfeed their newborns, as the benefits of nursing are well-established. However, returning to work can present challenges to nursing mothers. Currently, twenty-eight states have laws related to supporting nursing women at work, and Colorado is among them.

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Real Estate Law

FinCEN and Real Estate: Additional Disclosure Requirements May Be On the Horizon for Real Estate Transactions

As part of the anti-money laundering regime under the Bank Secrecy Act of 1970 (the “BSA”), in late 2021, the Financial Crimes Enforcement Network (“FinCEN”) division of the Department of the Treasury issued an advanced notice of proposed rulemaking (“ANPRM”) seeking to address potential money laundering through real estate transactions. The comment period for the ANPRM closed on February 21, 2022. This ANPRM comes closely after the notice of proposed rulemaking related to the implementation of the Corporate Transparency Act (the “CTA”), which you can read more about here. Both the CTA and the proposed regulations under the ANPRM would require significant levels of disclosure regarding the beneficial ownership of companies and real estate in non-financed real estate transactions. These measures aim to reduce money laundering, and assets held by undisclosed foreign investors. It is estimated that between 2015 and 2020, at least $2.3 billion was laundered through U.S. real estate, though the actual figure is likely much higher Accordingly, both FinCEN and Congress are trying to limit the number of real estate transactions used to launder money.

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