24-34-402.5. Unlawful prohibition of legal activities as a condition of employment.
Statute text
(1) It shall be a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee's engaging in any lawful activity off the premises of the employer during nonworking hours unless such a restriction:
(a) Relates to a bona fide occupational requirement or is reasonably and rationally related to the employment activities and responsibilities of a particular employee or a particular group of employees, rather than to all employees of the employer; or
(b) Is necessary to avoid a conflict of interest with any responsibilities to the employer or the appearance of such a conflict of interest.
(2) (a) Notwithstanding any other provisions of this article, the sole remedy for any person claiming to be aggrieved by a discriminatory or unfair employment practice as defined in this section shall be as follows: He or she may bring a civil action for damages in any district court of competent jurisdiction and may sue for all wages and benefits that would have been due him or her up to and including the date of the judgment had the discriminatory or unfair employment practice not occurred; except that nothing in this section shall be construed to relieve the person from the obligation to mitigate his or her damages.
(b) (I) If the prevailing party in the civil action is the plaintiff, the court shall award the plaintiff court costs and a reasonable attorney fee.
(II) This paragraph (b) shall not apply to an employee of a business that has or had fifteen or fewer employees during each of twenty or more calendar work weeks in the current or preceding calendar year.
History
Source: L. 90: Entire section added, p. 1222, 1, effective July 1. L. 2007: (2) amended, p. 859, 1, effective July 1.
Annotations
ANNOTATION
Annotations
Law reviews. For article, "State Laws: A Growing Minefield for Employers", see 23 Colo. Law. 1089 (1994). For comment, "Colorado's Lifestyle Discrimination Statute: A Vast and Muddled Expansion of Traditional Employment Law", see 67 U. Colo. L. Rev. 143 (1996). For article, "Navigating the Blogosphere in the Workplace--The Blogosphere or: How I Learned to Stop Worrying and Love the Blog", see 35 Colo. Law. 55 (May 2006). For article, "Colorado's Lawful Activities Statute: Balancing Employee Privacy and the Rights of Employers", see 35 Colo. Law. 41 (Dec. 2006). For article, "Employee Rights and Social Media", see 41 Colo. Law. 91 (Nov. 2012). For article, "Off-Duty Medical Marijuana Use Not Protected Under Lawful Activities Statute", see 42 Colo. Law. 103 (July 2013). For article, "Coats v. Dish Network: Colorado Lawful Activity Statute Does Not Protect Medical Marijuana Patients", see 44 Colo. Law. 61 (Nov. 2015). For article, "Remedies for Workplace Sexual Violence", see 45 Colo. Law. 47 (Nov. 2016).
This section is read to contain two parts. First part prohibits employers from terminating employees for the reasons enumerated. Second part provides a defense to employer if employer has a restriction on an employee's lawful activities which satisfies one or both of the enumerated exceptions. Thus, issue of restrictions of an employee's activities arises only as part on an employer's defense to an action for violation of the section, and no specific restriction must be adopted by an employer as a predicate to violating the prohibition. Gwin v. Chesrown Chevrolet, Inc., 931 P.2d 466 (Colo. App. 1996).
There is a two-pronged analysis under this section: (1) Did the employer terminate an employee for participation in a lawful activity; and (2) was there a statutory exception to justify that termination. Marsh v. Delta Air Lines, Inc., 952 F. Supp. 1458 (D. Colo. 1997).
This section does not require an employer to adopt specific written restrictions for which it can terminate an employee, but merely requires that any restriction an employer is attempting to enforce must fall under the purview of the statute's exceptions. Marsh v. Delta Air Lines, Inc., 952 F. Supp. 1458 (D. Colo. 1997).
Off-premises activities that constitute violations of state laws can be deemed unlawful even if there are no criminal citations. Oransky v. Martin Marietta Materials, Inc., 400 F. Supp. 3d 1142 (D. Colo. 2019).
This section does not protect an employee who has unique job duties and responsibilities and who chooses a particularly overt way to conduct their off-duty activities. Oransky v. Martin Marietta Materials, Inc., 400 F. Supp. 3d 1142 (D. Colo. 2019).
A conflict exists when an employee engages in activities of a private and personal interest on the employee's own time, but does so in a way that could bring the reputation of the employer with important third parties into question. Oransky v. Martin Marietta Materials, Inc., 400 F. Supp. 3d 1142 (D. Colo. 2019).
To the extent this state has a general public policy of preventing employers from placing restrictions on employee's off-duty, first amendment activities, it is clear that this section reflects an equally important public policy of allowing employers to terminate employees whose off-duty conduct (under the first amendment or not) creates a conflict of interest or interferes with the employee's performance of unique job duties. Oransky v. Martin Marietta Materials, Inc., 400 F. Supp. 3d 1142 (D. Colo. 2019).
State law expressly contemplates that an employer may terminate an employee whose off-duty conduct interferes with their job duties or creates a conflict of interest. Oransky v. Martin Marietta Materials, Inc., 400 F. Supp. 3d 1142 (D. Colo. 2019).
One of the bona fide occupational requirements encompassed within the scope of subsection (1)(a) is an implied duty of loyalty, with regard to public communications, that employees owe to their employers. Marsh v. Delta Air Lines, Inc., 952 F. Supp. 1458 (D. Colo. 1997).
The term "conflict of interest" should be given its generally understood meaning, that is, that it relates to fiduciaries and their relationship to matters of private interest or gain to them or a situation in which regard for one duty tends to lead to disregard of another. Marsh v. Delta Air Lines, Inc., 952 F. Supp. 1458 (D. Colo. 1997).
The term "conflict of interest" is not limited to financial conflicts of interest. Ruiz v. Hope for Children, Inc., 2013 COA 91, 352 P.3d 983.
Nor must a conflict actually interfere with an employee's ability to perform his or her job. Ruiz v. Hope for Children, Inc., 2013 COA 91, 352 P.3d 983.
The plain language of the statute does not require that an employer consider a less drastic alternative to termination of the employee when a conflict of interest exists. Ruiz v. Hope for Children, Inc., 2013 COA 91, 352 P.3d 983.
Subsection (1) unambiguously prohibits only termination or discharge of an employee's employment and does not extend to demotion of an employee to another position with the same employer. Butler v. Bd. County Comm'rs for San Miguel, 2021 COA 32, 491 P.3d 506.
Exhaustion of administrative procedures, as set forth in 24-34-306, is not a condition precedent to asserting an "unlawful prohibition" claim under this section. Galieti v. State Farm Mut. Auto. Ins. Co., 840 F. Supp. 104 (D. Colo. 1993).
The six-month statute of limitations set forth in 24-34-403 governs all actions under part 4, including actions brought pursuant to this section. Galieti v. State Farm Mut. Auto. Ins. Co., 840 F. Supp. 104 (D. Colo. 1993).
The six-month limitation period set forth in 24-34-403 applies only to claims filed with the Colorado civil rights commission and, therefore, does not apply to claims filed in a district court pursuant to this section. Galvan v. Spanish Peaks Reg'l Health Center, 98 P.3d 949 (Colo. App. 2004).
This section applies to lawful, off-duty conduct, even if it is work-related. Insofar as the section refers to "any lawful activity", it can be presumed that the general assembly meant all activity without limitation. Accordingly, damages could be awarded to person who was terminated for making a complaint off the premises of the employer during nonworking hours about the safety of a work site. Watson v. Pub. Serv. Co., 207 P.3d 860 (Colo. App. 2008).
The defense in subsection (1)(a) is satisfied when an employer can show that an employee's conduct was reasonably and rationally related to the employee's responsibilities, as defined by activities that are necessarily not in direct conflict with the essential business-related interests of the employer. The trial court properly dismissed a complaint under this section where the employer could show that the employee, a manager of a plant that had failed an audit, was discharged for taking a vacation during a post-audit meeting. Williams v. Rock-Tenn Servs., Inc., 2016 COA 18, 370 P.3d 638.
State-licensed medical marijuana use not "lawful activity" for purposes of this section. The statute does not define "lawful", and a plain and ordinary meaning of the word is that which is "permitted by law". Because medical marijuana use is subject to both state and federal law, for such an activity to be lawful in this state, it must be permitted by, and not contrary to, both state and federal law. Because plaintiff's state-licensed medical marijuana use was, at the time of termination, subject to and prohibited by federal law, it was not "lawful activity". Coats v. Dish Network, L.L.C., 2013 COA 62, 303 P.3d 147, aff'd, 2015 CO 44, 350 P.3d 849.
The defendant county was entitled to attorney fees after prevailing under this section even though plaintiff prevailed in her due process claim because the two claims were sufficiently distinct to allow a finding that there was a different prevailing party as to each. Langseth v. County of Elbert, 916 P.2d 655 (Colo. App. 1996).
Claim under this section may not be tried to a jury. Back pay under part 4 of the Colorado Civil Rights Act, which includes this section, is an equitable remedy, the purpose of which is to make the plaintiff whole. If the general assembly intended to provide for a jury trial under this section, it would have specifically done so. Watson v. Pub. Serv. Co., 207 P.3d 860 (Colo. App. 2008).
Section does not provide for prejudgment interest. Watson v. Pub. Serv. Co., 207 P.3d 860 (Colo. App. 2008).
Jury verdict based only upon an instruction that plaintiff would not have been dismissed but for his sexual orientation did not support a violation of this section. The instruction was based on a Denver ordinance that prohibits dismissal based on sexual orientation, not this section, which prohibits dismissal because an employee engaged in lawful activity away from an employer's premises during nonworking hours. Robert C. Ozer, P.C. v. Borquez, 940 P.2d 371 (Colo. 1997).
Employee's romantic relationship with a client or former client of a small nonprofit organization dedicated to promoting the safety and well-being of children and families created the appearance of a conflict of interest with the employee's job responsibilities. Ruiz v. Hope for Children, Inc., 2013 COA 91, 352 P.3d 983.