TERMINATING EMPLOYEES FOR OFF-DUTY ACTS OF MORAL TURPITUDE T HOMA S S . R I CE S E NTER G OL DFA RB & R I CE , LLC CDL A T E L LUR IDE S U M M ER CON F E R ENCE 2 0 1 4 The problem defined. The employment relationship is unique. Employees as “extensions” of the employer. But, employee has life apart from job. When bad acts are committed, what remedy does the employer have? Limit our discussion to terminations. Examples. Provocative speech. Web posting. Sexual conduct. Civil lawsuits alleging fraud. Paternity actions and support enforcement. And so forth… How would an employer like to wake up to this in the morning newspaper? Basic premise. As an “at will” state, Colorado generally allows employer to terminate for virtually any reason. But, complicated by: “For cause” relationships; Myriad exceptions. Complicating statute. Lawful Activities Statute, CRS 24-34-402.5. Discriminatory/unfair labor practice to terminate for: Lawful activity; Off premises; Nonworking hours. Statutory exceptions. Bona fide occupational requirements. Reasonably related to employment activities/responsibilities of a particular employee/group. Duty of loyalty case. Marsh v. Delta Air Lines, Inc. (D. Colo. 1997). Alcohol usage by emergency call out personnel. Statutory exceptions. Necessary to avoid conflict of interest or appearance of such. Not limited to financial conflicts. Need not show actual interference with job-related duties. Romantic relationship case. Ruiz v. Hope for Children, Inc. (CCOA 2013). What is a lawful activity? One that does not contravene any law. Medicinal marijuana case. Coats v. Dish Network, LLC (CCOA 2013). Local laws? Civil laws? Will Colo. Sup. Ct. view differently? If acquitted in criminal case, was conduct lawful? For cause requirements. Unfit to perform the job. Retention would have adverse effect on public perception of employer. Incest case. City of Colorado Springs v. Givan (CSC 1995). Unsafe driving by police officer case. Harris v. City of Colorado Springs (CCOA 1993). Government employer issues. 1st Amend. free speech. 14th Amend. due process. 14th Amend. equal protection. Right to privacy. Practice considerations. Employee codes of conduct: tie rules to fitness for the job and as reflecting on employer’s stature. Require that employees report off-duty conduct falling within certain defined categories, e.g. arrest, ethics complaints/license revocation, lawsuits, etc. Failure to report might be good cause. In termination proceedings, emphasize impact of workplace or public perception. Always emphasize that each case stands on its own merits.