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Wrongful Discharge for Off-Duty Conduct


What an employee does after work hours might have more significant consequences for the employer than what the employee does while on duty. That is one implication of Watson v. Public Service Co. of Colorado, a wrongful discharge case which the Colorado Supreme Court is considering for review. The case involves application of a Colorado statute that can make an employer liable for termination of an employee’s employment “due to that employee’s engaging in lawful activity off the premises of the employer during nonworking hours.”

The statute, C.R.S. section 24-34-402.5, is part of Colorado’s anti-discrimination laws. It was originally enacted in 1990, supposedly to protect smokers from discrimination by employers. But since its enactment, employees have alleged that the statute has broad application to many other activities, ranging from sexual to political. With few reported decisions about the statute’s coverage, its scope and other issues remain unsettled.

The statute generally prohibits termination of employment for lawful off-duty activity, but it provides exceptions. One exception is for an employment restriction which relates to a “bona fide occupational requirement,” or is “reasonably and rationally related to the employment activities and responsibilities” of a particular employee or group. Another exception is made for a restriction necessary to avoid a conflict of interest with any responsibilities to the employer, or the appearance of such a conflict.

In the Watson case, the Colorado Court of Appeals held that the off-duty conduct statute applied even to work-related conduct. It was applied to an employee’s claim alleging he was terminated by his employer (“Xcel”) in retaliation for him making a telephone complaint to OSHA (the Occupational Safety and Health Administration) about what he considered to be unsafe working conditions. He had made the complaint to OSHA while off duty, off the employer’s premises. Xcel denied it had retaliated, and said that the plaintiff was terminated because he had failed to meet a requirement of obtaining a commercial driver’s license, not for calling OSHA.

The Court of Appeals in Watson was not persuaded by arguments, including language from a federal court decision in a different case, that the off-duty conduct statute only applied to non-work related activities. The federal court case, Marsh v. Delta Air Lines, was decided in 1997. The court in Marsh dismissed claims by a former employee of Delta Air Lines, who had been terminated after he wrote a letter to the editor of The Denver Post that criticized Delta’s decision to hire hourly contract workers to replace laid-off employees.

The judge’s decision in Marsh suggested that the off-duty conduct statute applied to “private off-the-job activity, that is unrelated to the employee’s job.” But the judge decided the case based on the statutory exception for “bona fide occupational requirements.” The judge held this includes an implied duty of loyalty by the employee to the employer with regard to public communications, and held that the employee’s letter to the editor about Delta (not concerning public safety) breached that duty.

The federal judge’s comments in Marsh regarding scope of the off-duty conduct statute were not binding on the state Court of Appeals in the recent case of Watson. The latter court held that the employee’s call to OSHA while off duty fell within the protections of the statute, even though the phone call was work-related. (Ironically, the statute may not have applied if the employee had made the call while at work.) The court held that the off-duty statute applied, though Xcel argued another law regarding retaliation for certain work-related conduct may have applied instead.

In addition to its decision that the off-duty conduct statute applied to work-related activity, the Watson court addressed other issues under the statute. Its opinion underscores some differences in remedies and procedures under the statute from those under other laws that might apply to the same facts of a given case.

For example, the court held that there is no right to a jury trial under the statute, so a case under it would need to be decided by a judge. The court’s opinion indicates that a claimant would have to prove that termination of employment was “due to” the legal off-duty activity, and it would not be sufficient to show that the activity was just one factor in a case of mixed motives. In this regard, the statute refers to termination of employment, and it does not mention discriminatory conduct short of termination.

The off-duty conduct statute appears to only provide for the employee to sue for recovery of lost back-pay and for reasonable attorney fees and costs. Claims under other laws, if they apply to the same facts, might also provide for recovery of future lost wages (“front pay”), prejudgment interest and compensation for other damages, such as mental suffering.

Other laws prohibiting discrimination or retaliation may have a procedural requirement for the employee to first promptly submit the allegations to a responsible agency (such as the Colorado Civil Rights Division or the federal Equal Employment Opportunity Commission) for administrative handling. The off-duty conduct statute does not have such a requirement. The statute also might provide a remedy even if an administrative charge under other applicable law was not timely made.

While awaiting further guidance from appellate decisions, one can expect that employers, former employees and their respective attorneys will continue to debate issues about the scope and application of the off-duty conduct statute. Employers should weigh carefully any adverse employment action. Even where an employee has clearly failed to meet legitimate work expectations, if there is an appearance that the employee is actually being terminated due to legal off-duty activity, the employer may have to defend a claim for alleged violation of the statute.


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