Employment law -Colorado lawful activities

Posted by: Aug 17, 2013By Brian Stutheit

Colorado is an employment at will state.  In a nutshell, this means unless there is a contract to the contrary, neither an employer nor an employee is required to give advance notice of termination or resignation.  Additionally, neither an employer nor an employee is required to give a reason for the separation from employment.

There are exceptions to an employer’s right to terminate.   Termination cannot be motivated by discrimination based on race, religion, age, etc.   Another exception is a statute called the Colorado lawful activities statute.  COLORADO REVISED STATUTES, section 24-34-402.5.  A worker who successfully sues his or her employer for violating the statute is entitled to wages lost and a reasonable attorney fee.  The statute says it it a discriminatory or unfair employment practice to terminate an employee due to that employee engaging in any lawful activity off the premises during nonworking hours, unless;

a)  the employer’s prohibition of the activity is reasonably related to the employment activities and the responsibilities of and employee; or

b)  the employer’s prohibition is necessary to avoid a conflict of interest, or the appearance of a conflict of interest.

In a recent decision the Colorado Court of Appeals supported an employer which fired a female employee for dating a client of the employer.  Ruiz v. Hope for Children, Inc.  The Court relied on the language in the statute that a mere appearance of a conflict of interest is enough to allow for termination.  It rejected Ruiz’s argument that there was no actual, financial conflict of interest.

Now that use of marijuana was legalized by Colorado, will off premises and after hours marijuana use still be sufficient reason to be terminated?  We think the answer to that is simple – yes it will be sufficient.  Marijuana is still unlawful under federal law.