Monthly Archives: June 2013

June 26, 2013

Employers Benefit From Supreme Court Ruling On Title VII Retaliation Claims

By Jude Biggs 

In a favorable ruling for employers, on June 24 the U.S. Supreme Court held that a retaliation claim under Title VII of the Civil Rights Act of 1964 requires an employee to show the employer’s desire to retaliate was the “but-for” cause of the challenged employment action.  University of Texas Southwestern Medical Center v. Nassar, No. 12-484 (U.S. June 24, 2013).  This establishes a different causation standard for retaliation claims than is required for underlying Title VII discrimination claims, which only require an employee to show the motive to discriminate was one of the employer’s motives in making an adverse decision.  Although cumbersome to have two standards, the decision is good news for employers, as often a jury will not find any discrimination by an employer, but may find retaliation after an employee speaks up about alleged discrimination.  Making it more difficult to prevail on a retaliation claim will, hopefully, encourage plaintiffs to bring fewer cases or resolve them earlier than going through an expensive trial.  

Employee Must Prove Employer Would Not Have Taken Action But For an Improper Motive 

In a 5-4 decision, the Supreme Court ruled a plaintiff making a retaliation claim under Title VII must establish that the employer would not have taken the alleged adverse employment action but for the plaintiff having engaged in protected activity.  Protected activity that may trigger a retaliation claim includes the employee opposing, complaining of or participating in a proceeding about unlawful discrimination in the workplace.  Through this ruling, the Court instructs that retaliation claims should fail if an employer had other reasons or motivations – singly or together — that caused the employer to take the adverse action (even if one other factor was retaliatory in nature).   In less legal terms, the employer wins if it can show its non-retaliatory reasons caused it to make the decision, even if a small portion of the decision was based on retaliation against the employee for engaging in protected conduct. 

Justice Kennedy, writing for the majority which included Justices Roberts, Scalia, Thomas and Alito, stated that the text of Title VII’s anti-retaliation provision appears in a different section of the law from the provision that prohibits discrimination based on race, color, religion, sex or national origin.  When Congress inserted the less rigorous “motivating factor” standard for discrimination cases in 1991, it could have inserted that standard into the anti-retaliation provision.  In choosing to omit it, Congress deliberately concluded that retaliation claims are to be treated differently and retaliation is unlawful only when the employer takes adverse action against an employee “because” of their protected activity.  The Court pointed to its interpretation of the Age Discrimination in Employment Act of 1967 in Gross v. FBL Financial Services, Inc. to require “but for” causation for retaliation claims. 

The Court also stated that this causation standard is essential to the fair and responsible allocation of judicial resources.  Recognizing that retaliation claims have been on the rise, the Court recognized that lessening the causation standard could contribute to the filing of frivolous claims, diverting resources from employers, agencies and courts in other efforts to fight workplace harassment. 

Dissent Urges Congressional Action 

Justices Ginsburg, Breyer, Sotomayor and Kagan dissented, alleging that fear of retaliation is the leading reason why employees do not speak up about discrimination in the workplace.  Because Title VII plaintiffs often have been subjected to both discrimination and retaliation, they now will have to litigate their claims under two standards:  (1) discrimination under the “motivating factor” test which requires a plaintiff to show only that a prohibited characteristic was a motivating factor in the employer’s adverse action, even if other factors also motivated the action; and (2) retaliation under the “but for” standard which requires a plaintiff to show that the employer would not have taken the adverse action but for a retaliatory motive.  The dissent concluded that this decision is at odds with a line of previous decisions that recognize retaliation claims are inextricably bound up with an underlying discrimination claim.  Justice Ginsburg, writing the dissenting opinion, stated “the Court appears driven by a zeal to reduce the number of retaliation claims filed against employers.” Calling the majority decision “misguided,” the dissent urges Congress to enact another Civil Rights Restoration Act to counter and remedy the injustice done by the majority opinion. 

Employers May Face Fewer Retaliation Claims or At Least, Fewer Successful Claims 

In practice, it is questionable how relevant the causation standard may be to potential litigants of retaliation claims.  Employees believing they have been wronged after they complain about discrimination will likely still file retaliation claims, no matter what causation standard applies.   Juries often will conclude retaliation occurred based on a general “fairness” standard.  However, employers may be able to resolve such claims at the summary judgment stage (when a court decides a claim does not merit a trial), because proof of other factors that contributed to the adverse employment decision will defeat the retaliation claim. 


Disclaimer:This article is designed to provide general information on pertinent legal topics. The statements made are provided for educational purposes only. They do not constitute legal advice and are not intended to create an attorney-client relationship between you and Holland & Hart LLP. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.


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June 25, 2013

Supreme Court Limits Definition of Supervisor for Employer Liability in Workplace Harassment Claims

By Emily Hobbs-Wright 

In a huge win for employers, the U.S. Supreme Court today decided that for purposes of determining employer liability for Title VII harassment cases, a “supervisor” is limited to those who are empowered by the employer to take tangible employment actions against the victim.  Vance v. Ball State Univ., No. 11-556 (U.S. June 24, 2013).  This means that employees who oversee the daily activities of other employees, but do not have the power to discipline, fire, promote, transfer or take other actions against an employee, are not considered “supervisors” in workplace harassment cases under Title VII.   

In drawing a sharp line between co-workers and supervisors, the Supreme Court adopted a clear standard that parties and reviewing courts can apply early in a case in order to determine which side has the burden of proof in Title VII harassment litigation.

Supervisor vs. Co-Worker as Harasser – Why It Matters 

Determining employer liability for harassment under Title VII of the Civil Rights Act of 1964 depends on whether the alleged harasser is a “supervisor” or a “co-worker” of the individual being harassed.  If the harasser is a co-worker, the employer will be liable for the harassing behavior only if the complainant can show that the employer was negligent, meaning that the employer knew or should have known of the conduct and failed to take immediate and appropriate corrective action.  See 29 CFR § 1604.11(d).   

If the harasser is a supervisor, however, the test for employer liability changes dramatically.  If the harassing supervisor caused a tangible employment action such as firing, demoting or reducing the complainant’s pay, the employer will be automatically liable for the harassment.  If there was no tangible employment action, the employer may still be liable, unless it can meet a two-pronged affirmative defense known as the Faragher/Ellerth defense.  

In order to establish the Faragher/Ellerth defense, outlined by the Supreme Court in the companion cases of Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 24 U.S. 742 (1998), an employer must show: (1) that the employer exercised reasonable care to prevent and promptly correct the harassing behavior; and (2) the plaintiff-employee unreasonably failed to take advantage of preventative or corrective measures established by the employer or to avoid harm otherwise.   

The key difference between cases alleging harassment by a co-worker and a supervisor is the burden of proof.  With co-worker harassment, the plaintiff-employee bears the burden of demonstrating employer negligence.  When trying to avoid liability for supervisor harassment, however, the employer bears the burden of establishing the Faragher/Ellerth affirmative defense.  The higher hurdle that must be met by employers when litigating supervisor harassment raises the opportunity for the plaintiff-employee to recover damages for harassment in the workplace.  Consequently, an important issue in a harassment case is whether the alleged harasser is a supervisor or a co-worker.   

Supreme Court Resolves Split in the Circuits on Definition of “Supervisor”

Lower courts have disagreed on the test for deciding whether an alleged harasser is a “supervisor” or merely a co-worker.  Some federal appellate courts, including the First, Seventh and Eighth Circuits, have ruled that an employee is not a supervisor under Title VII unless he or she has the power to hire, fire, demote, promote, transfer, or discipline the victim.  Other circuits, including the Second and Fourth Circuits, have followed the more expanded approach urged by the Equal Employment Opportunity Commission (EEOC), which applies “supervisor” status to those who have the ability to exercise significant direction over another employee’s daily work activities.   

In a 5-4 decision, the Supreme Court resolved this split in authority by holding that an employer may be vicariously liable for an employee’s unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim, that is, to effect a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.  Calling the EEOC’s definition of supervisor “nebulous,” the Court stated that it was not sufficient to deem an employee a “supervisor” based on his or her ability to direct another employee’s tasks.  The Court noted that the EEOC Guidance that looks at the number (and perhaps the importance) of the tasks in question would be a “standard of remarkable ambiguity.”  Relying on the Faragher and Ellerth decisions, the Court stated that a supervisor is instead empowered by the company as a distinct class of agent that may make economic decisions affecting other employees under his or her control. 

Bright Line Between Co-Workers and Supervisors Will Aid Employers Facing Harassment Claims 

The bright line test that the Court adopted for determining who is deemed a “supervisor” in Title VII cases eliminates murkiness and provides a clear test that reviewing courts can easily apply. The Court noted that it typically will be known before litigation is commenced whether an alleged harasser was a supervisor, and if not, it will become clear to both sides after discovery.  The Court goes on to say “once this is known, the parties will be in a position to assess the strength of a case and to explore the possibility of resolving the dispute.  Where this does not occur, supervisor status will generally be capable of resolution at summary judgment.”  The Court clearly wanted employers to be able to get the supervisor issue resolved early in a lawsuit so that both sides will know who bears the burden of proof and can pursue early resolution of the case based on the strength of the evidence. 

Employees Still Protected, but Must Prove Company Negligence 

The Court’s majority, which includes Justices Alito, Roberts, Scalia, Kennedy and Thomas, states that employees who face harassment by co-workers who possess the authority to inflict psychological injury by assigning unpleasant tasks or by altering the work environment in objectionable ways will still be protected under Title VII.  The Court states that such victims will be able to prevail “simply by showing that the employer was negligent in permitting this harassment to occur, and the jury should be instructed that the nature and degree of authority wielded by the harasser is an important factor to be considered in determining whether the employer was negligent.”  According to the majority, the fact that harassing co-workers may possess varying degrees of authority over daily tasks will not be a problem under the negligence standard “which is thought to provide adequate protection for tort plaintiffs in many other situations.” 

Dissent Would Follow EEOC’s Guidance and Extend “Supervisor” Status Based on Authority to Direct an Employee’s Daily Activities 

Justice Ginsburg, joined by Justices Breyer, Sotomayor and Kagan, wrote a lengthy dissent opining that the majority’s rule diminishes the force of Faragher andEllerth, ignores the reality of the current workplace and strays from the objective of Title VII in preventing discrimination in the workplace.  The dissent favors the EEOC’s Guidance, believing that employees who direct subordinates’ daily work are supervisors.  Justice Ginsburg wrote that although one can walk away from a fellow employee’s harassment, “[a] supervisor’s slings and arrows, however, are not so easily avoided.”  The dissent recites numerous cases in which a person vested with authority to control the conditions of a subordinate’s daily work life used his position to aid his harassment, and then points out that in none of the cases would the majority’s “severely confined definition of supervisor yield vicarious liability for the employer.”  The dissent concludes that the majority decision embraces a position that relieves scores of employers of responsibility for the behavior of the supervisors they employ.  

Conclusion – Victim Must Prove Employer Negligence When Harassed by a Non-Supervisor 

The Vance opinion means that employees alleging harassment by another employee who does not have the power to hire, fire, promote, transfer or discipline them, bear the burden of proving the employer’s negligence in order for the employer to be liable for the harassment.  This means the alleged victim must prove that the employer knew or should have known of the conduct and failed to take immediate and appropriate corrective action.


Disclaimer: This article is designed to provide general information on pertinent legal topics. The statements made are provided for educational purposes only. They do not constitute legal advice and are not intended to create an attorney-client relationship between you and Holland & Hart LLP. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.


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June 21, 2013

Arbitration Agreement Waiving Class Claims Upheld – What it Means for Employers

By Jeffrey T. Johnson 

Supreme court bldgArbitration is a matter of contract between the parties and courts are not permitted to invalidate an agreed-upon provision that prohibits claims from being arbitrated on a class action basis, the U.S. Supreme Court ruled in its June 20, 2013 opinion in American Express Co. v. Italian Colors Restaurant.  Employers can benefit from this ruling by crafting arbitration agreements that limit an employee’s right to pursue employment claims on behalf of a class of employees.   

Cost to Pursue Individual Arbitration Not a Factor 

At issue in the American Express case was an arbitration agreement between American Express and merchants who accept its charge cards that required the parties to arbitrate all disputes.  The agreement further stated that “there shall be no right or authority for any Claims to be arbitrated on a class action basis.”  

When numerous merchants filed a class action lawsuit against American Express alleging violations of federal antitrust laws due to American Express’ alleged high card fees, American Express moved to dismiss the lawsuit and instead force each merchant to arbitrate its claim individually, as required by the arbitration agreement.  The District Court agreed with American Express and dismissed the class action lawsuit.  The merchants appealed the dismissal to the Second Circuit Court of Appeals, arguing that the cost to prove the antitrust claims by each individual merchant would far exceed the amount they could recover as an individual plaintiff.  The merchants submitted a declaration from an economist who estimated that the cost of expert analysis on the antitrust claims would be “at least several hundred thousand dollars, and might exceed $1 million.”  The maximum amount of damages that each individual plaintiff could expect to recover was $38,549 as treble damages.  The Second Circuit reversed the dismissal, ruling that because the cost for each merchant to arbitrate their claim individually was prohibitive, the class-action waiver in the arbitration agreement was unenforceable and arbitration could not proceed.  American Express sought review by the Supreme Court. 

In a 5-3 ruling, the Supreme Court held that the Federal Arbitration Act (FAA) does not allow courts to invalidate a contractual waiver of class actions on the ground that the plaintiffs’ cost to arbitrate a federal statutory claim individually exceeds the potential recovery.  Justice Antonin Scalia, writing for the majority, rejected the merchants’ argument that cost vs. recovery should factor into the enforceability of an arbitration agreement.  He wrote that “the antitrust laws do not guarantee an affordable procedural path to the vindication of every claim.”  The Court drew a distinction between contract provisions that prohibit an individual from asserting their statutory rights at all (e.g., a waiver of certain claims) and prohibiting class claims.  Relying on earlier precedent, the Court reiterated that it may invalidate arbitration agreements that operate as a prospective waiver of a party’s right to pursue statutory remedies, but will not invalidate an agreement because it is not worth the expense involved in a party proving a statutory remedy.  The Court also refused to create preliminary hurdles before a plaintiff could be held to contractually-agreed arbitration, such as requiring a court to evaluate the cost to prove claims as well as the damages that could be recovered if the plaintiff is successful.  Justice Scalia wrote that “such a judicially created superstructure” would “undoubtedly destroy the prospect of speedy resolution that arbitration in general and bilateral arbitration in particular was meant to secure.” 

Dissent:  Majority’s Response to Merchants Was “Too Darn Bad” 

Justice Elena Kagen, joined by Justices Ruth Bader Ginsburg and Steven Breyer (Justice Sotomayor did not take part in the decision), wrote a stinging dissent in which she characterized the case as small business owners who were forced to accept a form contract by a monopolizing credit card company that violated antitrust laws.  The dissent states that if the arbitration clause is enforceable, American Express has insulated itself from antitrust liability because it used its monopoly power to insist on a contract that “effectively deprives its victims of all legal recourse.”  Justice Kagen wrote: the “nutshell version of today’s opinion, admirably flaunted rather than camouflaged:  Too darn bad.”  The three dissenting justices believe that the FAA was never meant to produce the outcome arrived at by the majority, and that the majority decision blocks the vindication of meritorious federal claims and insulates wrongdoers from liability.  The dissent instead would rely on the “effective vindication” rule, namely that an arbitration clause will not be enforced if it prevents the effective vindication of federal statutory rights, however it achieves that result, to invalidate the bar on class arbitration in the American Express agreement. 

Employment Arbitration Agreements 

Recent Supreme Court decisions upholding arbitration agreements, such as the American Express opinion, may bolster efforts to use arbitration agreements in the employment context.  Although there are pros and cons to utilizing arbitration agreements with employees, a significant advantage is the ability to prohibit class actions by requiring employees to arbitrate their employment disputes on an individual basis.  In addition, arbitration can be less costly than litigating in court, and more confidential as most arbitration filings are not public records.  Perhaps most significantly, arbitration allows employment cases to be heard by arbitrators, not juries, thereby reducing the risk of runaway verdicts.  Employers should consult with employment counsel to determine if arbitration agreements are warranted with their workforce and if so, what provisions will best protect the company’s interests.


Disclaimer: This article is designed to provide general information on pertinent legal topics. The statements made are provided for educational purposes only. They do not constitute legal advice and are not intended to create an attorney-client relationship between you and Holland & Hart LLP. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.


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June 19, 2013

Wyoming Employers – Time to Pay More Attention to those Unemployment Claims

320px-Flag_of_Wyoming_svgBy Brad Cave 

July 1 creates some new incentives for Wyoming employers to participate in the unemployment claims system.  Currently, UI benefits are paid to the employee beginning immediately when a deputy clerk of the Wyoming Department of Workforce Services determines that the employee is entitled to benefits.  If the employer appeals that determination, and a hearing officer reverses the deputy’s decision, the employer’s account is not charged for the benefits paid under the deputy’s erroneous decision.  The same is true if the employer obtains reversal of a decision granting benefits through an appeal to the Unemployment Insurance Commission or the district court. 

Effective July 1, this general rule has an exception that all employers should keep in mind.  Bowing to federal pressure, the Wyoming Legislature amended the Wyoming Employment Security Law (ironic name for the unemployment benefit statute, isn’t it) to require employers to respond to requests for information from the Department.  See, http://legisweb.state.wy.us/2013/Enroll/SF0073.pdf  Employers will no longer escape the monetary consequences of erroneous payments if the Department determines that, (1) an erroneous payment of benefits was made because the employer was at fault for failing to respond adequately or on time to a written request for information; and, (2) the employer has established a pattern of failing to respond adequately or on time to such requests.  The employer’s responses must be received within fifteen (15) days after the Department sends the request, whether by regular mail or email.   What constitutes a pattern of failing to respond remains to be seen – the Legislature said only that the phrase means a “repeated documented failure” to respond to written requests for information, “taking into consideration the number of instances of failure in relation to the total volume of requests by the Department” to the employer. 

Action items for Wyoming employers: 

1.  Maintain documentation of your responses to the Department on unemployment claims.  We don’t believe that certified mail is necessary for most employers, but we do suggest keeping copies of all the documentation you return in response to a request.  Also, the amendment requires the Department to acknowledge receipt of the requested information within fifteen (15) days if the employer requests such acknowledgement. 

2.  Some employers use a third-party agent or centralized offices in remote states to respond to unemployment claims.  Be sure to notify those who process your UI claims, as the amendment clearly holds the employer responsible for delays or inadequate information from an employer’s agent.  Likewise, if you have drug your feet getting back to your UI agent with the necessary information, now is the time to improve your response time so the agent does not blame you for a “pattern of failing to respond.” 

3.  As always, be very careful about what you (or your agent) say or submit in response to a request for information.  A determination for or against an employee regarding unemployment benefits is not “binding, conclusive or admissible” in any subsequent litigation between the employer and employee.  But the employer can be bound by what it says were the reasons for termination and the documents it submits to support the termination.  Any discrepancy in the employer’s reasons can weaken your objection to the UI claim and be used in other legal proceedings to challenge the legitimacy of your reasons for the termination.


Disclaimer: This article is designed to provide general information on pertinent legal topics. The statements made are provided for educational purposes only. They do not constitute legal advice and are not intended to create an attorney-client relationship between you and Holland & Hart LLP. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.


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June 17, 2013

New Nevada Law Restricts Use of Credit Checks for Employment Purposes

By Anthony Hall and Dora Lane 

Nevada recently joined the ever-growing list of states that restrict the use of credit reports by employers.  Effective October 1, 2013, Senate Bill 127 will, with limited exceptions, prohibit Nevada employers from making an adverse employment decision based on credit information and from requesting or requiring any prospective or current employee to submit a consumer credit report as a condition of employment.   

Use of Credit Reports as an Unfair Employment Practice 

By amending the Employment Practices chapter of the Nevada Revised Statutes, Senate Bill 127 makes it unlawful for any Nevada employer to: 

1)  Directly or indirectly require, request, suggest or cause any employee or prospective employee to submit a consumer credit report or other credit information as a condition of employment; 

2)  Use, accept, refer to or inquire about a consumer credit report or other credit information; 

3)  Discipline, discharge, discriminate against or deny employment or promotion, or threaten to take such action, against any prospective or current employee on the basis of the results of a credit report or for refusing or failing to provide a credit report; or 

4)  Discipline, discharge, discriminate against or deny employment or promotion or threaten to take such action against any prospective or current employee for filing a complaint or instituting (or causing to be instituted) a legal proceeding under this law, testifying in any legal proceeding (actually or potentially) to enforce the provisions of this law, or exercising (individually or on behalf of another) rights afforded under this statute. 

Exceptions Allowing the Use of Credit Information 

Under this new law, employers are permitted to request or consider consumer credit reports or other credit information for the purpose of evaluating an employee or prospective employee for employment, promotion, reassignment or retention under the following circumstances: 

  • When required or authorized by state or federal law;
  • Upon reasonable belief that the individual has engaged in specific activity which may constitute a violation of state or federal law; or
  • When information in the credit report is reasonably related to the position for which the employee or prospective employee is being considered (including retention as an employee). 

For most employers seeking to use credit reports to evaluate employees and applicants, it is this last exception that typically comes into play.  Importantly, the new law defines what shall be deemed “reasonably related” to include positions where the duties involve one or more of the following non-exclusive categories:

Care, custody and handling of, or responsibility for, money, financial accounts, corporate credit or debit cards or other assets;

  • Access to trade secrets or other proprietary or confidential information;
  • Managerial or supervisory responsibility;
  • The direct exercise of law enforcement authority as a state or local law enforcement agency employee;
  • The care, custody and handling of, or responsibility for, the personal information of another person;
  • Access to the personal financial information of another person;
  • Employment with a financial institution chartered under state or federal law (including subsidiaries or affiliates of such financial institutions); or
  • Employment with a licensed gaming establishment.

Public and Private Enforcement of Credit Report Law 

This new law provides for two types of enforcement mechanisms with a three year statute of limitations.  First, an individual harmed by a violation of this statute may file a private lawsuit against the allegedly offending employer.  The lawsuit may be filed on behalf of the individual employee or prospective employee, or on behalf of other similarly situated employees or prospective employees.  Courts may grant successful plaintiffs various remedies including employment, reinstatement or promotion to the position applied for, lost wages and benefits, attorney’s fees and costs and any other equitable relief deemed appropriate (without the issuance of a bond). 

Second, the Nevada Labor Commissioner may impose an administrative penalty against an employer of up to $9,000 for each violation of the law or may bring a civil lawsuit against the employer to obtain equitable relief as may be appropriate, such as employment, reinstatement or promotion of the employee and the payment of lost wages and benefits.   

Complying with Credit Restriction Laws in Ten States 

In enacting this new law, Nevada became the tenth state to restrict the use of credit reports for employment purposes, joining California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Oregon, Vermont and Washington.  Additional states are considering similar legislation.  Further, the Equal Employment Opportunity Commission (EEOC) has targeted employers for the use of credit reports as potentially causing disparate impact on certain protected groups.  Complying with these laws can be challenging, especially for multi-state employers. 

Prior to the October 1, 2013 effective date of Nevada’s new law, employers who use credit reports or credit information in their hiring or evaluation process need to review their screening policies.  Specifically, employers hiring individuals in Nevada need to evaluate each position for which they want to use credit reports and determine if the position falls under one of the enumerated exceptions in Senate Bill 127 that allows the use of credit information on applicants and/or current employees.  If the duties of the position do not fall within the list of exceptions, employers should evaluate whether the credit report “is reasonably related to the position.”  If the answer to both of these questions is “no,” then the employer should not request or use credit reports or other information from a consumer reporting agency when evaluating candidates for that position.  Employers with operations or hiring needs in multiple states need to stay abreast of the latest legal requirements to ensure that their credit screening policies comply with each applicable state restriction. This may mean implementing a different credit screening policy in those states where the use of credit reports is restricted by law.


Disclaimer: This article is designed to provide general information on pertinent legal topics. The statements made are provided for educational purposes only. They do not constitute legal advice and are not intended to create an attorney-client relationship between you and Holland & Hart LLP. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.


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June 10, 2013

Fired for Dating a Client, Employee Fails to Prove Violation of Colorado’s Lawful Activities Statute

By Mark Wiletsky 

MH900438796[1]Dating a client is probably never a good idea.  In some professions, it is a violation of ethical responsibilities.  In other cases, it may be bad for business when the relationship goes sour.  In the case of a family advocate for a social services organization, it created the appearance of a conflict of interest.  That conflict of interest saved a small Colorado employer from being liable for a violation of Colorado’s Lawful Activities statute when it terminated the family advocate for dating a client.  Ruiz v. Hope for Children, Inc., 2013 COA 91. 

Romantic Relationship as Lawful Activity Conducted Outside of Work 

Charlotte Ruiz worked as the only family advocate at a small non-profit social services organization in Pueblo called Hope for Children.  Seledonio Rodriguez became a client of Hope for Children when he attended a court-ordered fathering class there.  Ruiz didn’t meet Rodriguez until he completed his first class and needed assistance to sign up for a second class.  Shortly after completing his second class, Rodriguez ran into Ruiz at the Colorado State Fair and sometime thereafter, they began dating.  When Hope for Children’s executive director learned about the romantic relationship, she told Ruiz she could not continue to work for the organization if she wanted to continue to date Rodriguez.  Ruiz refused to give up the relationship, so she was fired. 

Ruiz sued Hope for Children alleging that she was terminated in violation of Colorado’s Lawful Activities Statute, which prohibits terminating an employee for engaging in a lawful activity outside of work.  After a two-day bench trial, the judge concluded that Ruiz was indeed terminated for engaging in a lawful activity outside of work.  However, the judge also found that the relationship raised a conflict of interest, or at least, the appearance of a conflict of interest which kept the termination from violating the statute.

Conflict of Interest Defense to Lawful Activities Statute 

Colorado’s Lawful Activities statute provides defenses that allow an employer to restrict employees’ off-duty, off-premises lawful activities, namely when the restriction: (1) relates to a bona fide occupational requirement or is reasonably and rationally related to the employment activities and responsibilities of a particular employee or group of employees; or (2) is necessary to avoid a conflict of interests with any responsibilities to the employer or the appearance of such a conflict of interest.  Before this opinion, no Colorado appellate opinions interpreted these statutory defenses.  In the Ruiz case, the Court of Appeals ruled that the conflict of interest defense was not limited to financial conflicts or an actual interference with the employee’s ability to perform a job-related duty.  Instead, the Court stated that the determination of a conflict of interest, or appearance of one, must be made in light of the facts and circumstances of each particular case looking at both the context and industry involved. 

In Ruiz’s case, the Court agreed that there was sufficient evidence to support the trial court’s conclusions that Ruiz’s romantic relationship with a client created an appearance of a conflict of interest with her job duties.  The relevant facts in this case included that: (a) Ruiz might be called to testify in court about Rodriguez’s completion of his court-ordered fathering class; (b) Hope for Children does not “close” its files and frequently worked with families over the course of many years, meaning Rodriguez would always be considered a client; (c) most of the organization’s budget was from a state agency grant and referrals from the agency would be negatively affected by permitting employees to date clients; (d) a romantic relationship between an employee and a client would negatively impact the credibility of the social services organization, as testified to by a former director of another social services agency and board member; and (e) the organization’s funding might be revoked if it allowed its employees to date clients.  Based on the appearance of a conflict of interest created by Ruiz’s relationship with Rodriguez, the Court agreed that Hope for Children’s termination of Ruiz fell within the statutory defense language contained within the Lawful Activities statute and therefore, did not violate the statute. 

What do we learn from this case?  First, be cautious before terminating an employee for otherwise lawful, off-duty activities, at least in Colorado and other states that protect such conduct.  Second, a romantic relationship can be a lawful, off-duty activity under the Lawful Activities statute.  Therefore, if you terminate an employee for a romantic relationship, be sure you are on solid footing to establish a defense to a wrongful termination claim. 

June 3, 2013

Criticizing Employer on Facebook Leads to Termination

By Steve Collis 

Griping about your employer on Facebook may feel liberating, but for one Colorado employee, it liberated him right out of his job.  Joe Lobato was feeling really sick at work.  He states that when he told his supervisor he was sick, his supervisor told him not to leave his machinery again.  Lobato then sat at his work computer to compose a long Facebook update complaining about his employer, apparently including the statement, “Guess they think a person is a machine and can’t get sick.” 

A co-worker, and Facebook “friend” of Lobato, reported the Facebook post to the company.  The company fired Lobato for “gross misconduct” for posting negative statements about the company on a public forum.  Now Lobato is talking to the media because he is about to lose his house and wants to get his job back. 

Can’t an Employee Gripe Online? 

Employees have the right to talk about their working conditions and terms of employment with their co-workers, even if such “talk” occurs online.  The National Labor Relations Board (NLRB) has focused a great deal of attention on employers’ social media policies, examining whether restrictions in the policies violate an employee’s right to engage in such conversations.  In fact, overly restrictive polices or actions taken in response to such policies could result in an unfair labor practice charge against the employer.  However, employees’ online rants are not protected when they are not for the mutual aid or protection of an employee or co-workers. 

In addition, in some states, employers may be legally prohibited from accessing their employees’ private online accounts.  Colorado recently passed a law prohibiting employers from requesting or requiring applicants/employees to disclose their user names or passwords for access to their personal electronic communications.  Numerous other states have similar laws restricting employer access to private electronic accounts. 

Lobato, however, appeared to be griping alone.  He did not appear to be initiating any discussion with co-workers for their mutual aid or protection.  In addition, the company learned of the negative comments from someone who had access to Lobato’s Facebook page, not through any apparent improper access.  Moreover, Lobato posted his rant while he was on company time.  Lobato says he has been told that his termination was justified. 

As Facebook, Twitter, and other social media become the new “water cooler” where workplace conversations take place, employees need to realize that comments made online can have consequences.  Employers, on the other hand, need to update their policies and procedures to define acceptable and unacceptable employee use of social media and company electronic resources, without making their policies too restrictive so as to run afoul of the NLRB.  While these new and ever-changing online platforms help shrink the universe by connecting us with acquaintances around the world, they raise unique challenges for both employees and employers alike when used in ways that touch the workplace.