Today’s political and social climate has brought significant changes to the workplace. Employers are adapting to a remote workforce, COVID-19 regulations, political protests and the upcoming election. Regardless of whether political speech and activity in your workplace have already caused noticeable workforce fragmentation or provided challenges to your human resources and management teams, it is important that employers are aware of laws impacting employees’ ability to express their views in the workplace. This includes, as an example, the Colorado Lawful Off-Duty Activity Statute.
Like many other states, Colorado is a state that prevents an employer from terminating an employee for lawful off-duty activity, which could include political affiliation and activism. As a result, prudent employers should carefully analyze their policies and protocols related to discipline and potential employment terminations in this socially and politically active environment.
The Colorado Lawful Off-Duty Activity Statute, codified at C.R.S. § 24-34-402.5, prohibits employers from taking any adverse employment action against a job applicant or employee as a result of (1) any lawful activity (2) off the premises of the employer (3) during nonworking hours. The statute is sometimes known as the “smokers’ rights law” or “lifestyle discrimination statute” because it was originally enacted to protect employees from being terminated for, as an example, being a smoker. Today, as a result of developing case law, the statute has been extended to a broader range of circumstances, including off-duty marijuana use and politically motivated speech and activities, exposing employers to additional avenues of liability. And in some cases, the statute has even been found applicable where a de minimis part of the disputed activity takes place on the employer’s premises during traditional working hours.
Despite the statute’s increasing scope, it does provide two employer-friendly exceptions. First, the statute authorizes employers to terminate employees for off-duty activities that are reasonably and rationally related to their employment. In other words, the statute allows employers to terminate an employee for activities that are inherently connected to the individual’s employment and emanate from the employee’s job duties and the company’s business interests.
To examine whether or not this exception applies, employers should carefully review and analyze an employee’s job duties to determine whether the disputed activity is generally covered by the employee’s job requirements. In the current political environment, for example, this exception may arise in the context of conduct by an executive-level employee that calls into question his or her abilities and competence to perform certain high-level functions, even when the activity is political in nature. This is particularly important in the context of political and politically motivated activity taking place on social media, where the line between protected and unprotected speech blurs. Thus, while an employer may not be able to lawfully terminate an employee for simply expressing his or her beliefs to colleagues during off-duty time, an employer may be able to terminate an employee for inserting politically motivated, harassing and inappropriate rhetoric into the workplace (e.g., sharing social media posts threatening to spread COVID-19 at a political rally), including during off-duty time, by expressing hostility toward certain political groups and affiliations in a manner that violates company policies and procedures.
Second, and somewhat relatedly, the statute authorizes employers to terminate employees when the decision is necessary to avoid a conflict of interest, or the appearance of a conflict of interest, with any responsibilities of the employer. Under this provision, an employer would unquestionably be prohibited from terminating an employee for expressing his or her off-duty political activities, including by attending a protest that conflicts with the political values of the employer. However, to avoid the appearance of a conflict of interest, an employer may be able to terminate an employee for attending a protest if the employee fails to report to work for a scheduled shift in violation of the company’s policies and procedures.
Ultimately, similar to the first exception, the determination of whether the second exception applies is highly fact intensive, and employers should carefully review the circumstances surrounding the employee’s alleged protected activity before proceeding with termination.
The Role of Public Policy
Even if an employer prevails under the statute, there is a risk that employers could also face separate common law claims stemming from an alleged termination in violation of public policy, particularly where politically motivated activity is involved. To maintain such a claim, an employee typically must prove that: (1) the employer prohibited him or her from performing a public duty or exercising an important job-related right or privilege; (2) the employer’s prohibition undermines a clearly expressed public policy; and (3) the employee was terminated as a result of refusing to abide by that prohibition.
Fortunately for employers, Colorado courts have recognized that Colorado’s public policy of supporting free speech is necessarily constrained by the statute. In other words, although the statute reflects an important policy of preventing employers from placing restrictions on employees’ off-duty conduct, Colorado courts have recognized that the statute also reflects an equally important policy of allowing employers to terminate individuals whose off-duty conduct under the First Amendment interferes with the employees’ job duties or gives rise to a potential conflict of interest. Accordingly, then, in politically charged cases where the employer prevails on the employee’s statutory claim due to one of the exceptions, it is possible, and indeed likely, that the employer will also prevail on the common law claim.
Notwithstanding these potential protections, the risk for employers under the statute remains high. Employees who successfully sue under the statute are entitled to all wages and benefits that would have been due to them up to and including the date of the judgment. Additionally, for employers with more than 15 employees, plaintiffs may also be able to recover costs and attorney’s fees.
To mitigate these risks, Colorado employers should take time to review and update current policies and procedures regulating off-duty functions, including marijuana use and political activities, to account for changes in the new political environment. Where feasible, employers should also strive to provide additional, remote training to managers and supervisory-level employees responsible for overseeing employees’ off-duty time. Finally, because case law in this area is continually evolving, employers confronted with possible litigation and demands should immediately consult with counsel for specific advice applicable to their situation.*
*Many thanks to Taylor Hill, office summer associate, for her assistance with research and drafting.