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.