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TERMINATING EMPLOYEES FOR OFF-DUTY ACTS OF MORAL TURPITUDE

TERMINATING EMPLOYEES FOR OFF-DUTY ACTS OF MORAL TURPITUDE. Thomas s. Rice Senter Goldfarb & rice, llc Cdla telluride summer conference 2014. The problem defined. The employment relationship is unique. E mployees as “extensions” of the employer. But, employee has life apart from job.

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TERMINATING EMPLOYEES FOR OFF-DUTY ACTS OF MORAL TURPITUDE

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  1. TERMINATING EMPLOYEES FOR OFF-DUTY ACTS OF MORAL TURPITUDE Thomas s. Rice Senter Goldfarb & rice, llc Cdla telluride summer conference 2014

  2. 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.

  3. Examples. • Provocative speech. • Web posting. • Sexual conduct. • Civil lawsuits alleging fraud. • Paternity actions and support enforcement. • And so forth…

  4. How would an employer like to wake up to this in the morning newspaper?

  5. 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.

  6. Complicating statute. • Lawful Activities Statute, CRS 24-34-402.5. • Discriminatory/unfair labor practice to terminate for: • Lawful activity; • Off premises; • Nonworking hours.

  7. 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.

  8. 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).

  9. 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?

  10. 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).

  11. Government employer issues. • 1st Amend. free speech. • 14th Amend. due process. • 14th Amend. equal protection. • Right to privacy.

  12. 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.

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