Colorado Court Mandates Workers Cannot Be Fired for Off-Duty Conduct, but They Can Be Demoted

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Colorado Court Mandates Workers Cannot Be Fired for Off-Duty Conduct, but They Can Be Demoted

A Colorado appeals court has confirmed that employees may not be terminated from their employment because of lawful conduct outside the workplace. However, the same ruling clarifies that they may be demoted even if the conduct does not violate the law. 

The case that established this precedent concerns the conduct of Jerud Butler, who took time off to testify in a child custody case against an employee under his supervision. This employee subsequently complained to their mutual county employer, who demoted Butler. Butler, in turn, filed a lawsuit against the county for violation of the Access Act and the Lawful Activities Statute.

The District Court sided against Butler, deciding that the Lawful Activities Statute does not protect against adverse actions, including demotion only against firing. The court decided the Access Act did not apply but was too ambiguous. A panel of the Court of Appeals upheld the ruling on the first part but clarified that the Access Act protects against adverse action directed toward employees only for testifying at the request of a lawyer or litigant.

Upon remanding it to a District Court, Butler was still not protected against adverse action due to the lack of a lawyer or litigants’ request for him to appear at the child custody hearing.