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Bryan E. Kuhn
Counselor at Law, P.C.
Business & Employment Law Attorney

Lawful Off-Duty Activity Statute

Ms. Charlotte Ruiz was employed as a Family Advocate for Hope for Children, Inc. The organization is a small nonprofit with three employees. Ms. Ruiz met Mr. Seledonio Rodriguez while he was a client with her organization after he was ordered by the District Court to attend a parenting class. To comply with the Court Order, Mr. Rodriguez completed a fatherhood program offered by Hope for Children. Ms. Ruiz was required to verify Mr. Rodriguez’s participation in the program and to testify in court regarding the same. After Mr. Rodriguez completed the first program, he took a second parenting class with the organization. Several days later, the pair met at the Colorado State Fair and began a romantic relationship.

Ms. Ruiz told the executive director that she was going on a date with Rodriguez. The executive director told her it was inappropriate to date clients and stated that if Ms. Ruiz wanted to continue the relationship, she could not continue to work for Hope for Children. The executive director gave Ms. Ruiz the weekend to consider her choice. When Ms. Ruiz returned to work, she informed the executive director that she would not end her relationship nor would she resign from her job. Ms. Ruiz was therefore terminated.

Ms. Ruiz brought a claim for wrongful termination under Colorado’s Lawful Activities Statute. Colorado is an at-will employment state, meaning that an employer or employee may terminate the employment relationship, for any reason or without reason, and without legal liability. However, the exceptions to this general right are considerable. The Colorado Lawful Activities statute is one such exception; stating that an employee cannot be fired or restricted for a lawful activity conducted outside of work and during nonworking hours; unless such activity relates to an occupational requirement or is necessary to avoid a conflict of interest with any responsibilities to the employer. The purpose of the statue is to balance an employee’s right to engage in lawful activity away from work with an employer’s legitimate business interests and needs.

The trial court, found that Ms. Ruiz was terminated for engaging in a lawful activity outside of work. However, found that the termination was not wrongful because the relationship gave rise to a conflict of interest, as well as the appearance of a conflict of interest. Although the relationship between Ms. Ruiz and Mr. Rodriguez was lawful, an employee may restrict the lawful off-duty activities of its employees if the restriction is necessary to avoid a conflict of interest with any responsibility owed to the employer, or the appearance of such a conflict.

Ms. Ruiz appealed the trial court’s judgment to the Court of Appeals stating that the trial court applied the conflict of interest defense too broadly. However, the Court of Appeals stated that the statute does not contain any requirement that a conflict of interest actually interfere with an employee’s ability to perform her job. The conflict of interest defense expressly contemplates that an employer may restrict an employee’s lawful, off-the-job activities, not only where an actual conflict of interest exists, but also where there is an appearance of such a conflict. Accordingly the Court of Appeals found that there was the appearance of a conflict, affirming the judgment of the trial court holding that Ms. Ruiz was not wrongfully terminated.

If you have a question about a termination due to a lawful off-duty activity, contact a lawyer to discuss your legal rights.

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