Employers in Colorado may demote workers for their off-duty conduct, even if it does not violate any law, the Court of Appeals decided last week.
State law, wrote Judge Christina F. Gomez for the three-member appellate panel, unambiguously prohibits only termination or discharge of an employees employment and does not extend to demotion of an employee to another position with the same employer.
However, the judges reviewing the issue which was previously appealed all the way to the U.S. Supreme Court also clarified the law does protect workers from retaliation if they testify before courts or the General Assembly.
The court considered the case of Jerud Butler, who spoke on behalf of his sister-in-law in her contentious divorce proceedings. She was married to Jeremy Spor, a coworker of Butler's with San Miguel Countys Road & Bridge Department.
One day, Butler took time off from work to support his sister-in-laws child custody hearing at her attorneys request, testifying to the court generally about the two mens jobs with the county. Although Butler said he had no authority over Spor, recollections differed between the parties about exactly what Butler told the judge about Spor.
The court ended up giving Spor less parenting time in the divorce proceedings than he was seeking. Afterward, Spor complained to the county about Butlers court appearance. Following an investigation, the county decided Butlers testimony about Spors work schedule showed poor judgment as a manager, and brought a family dispute into the workplace. He consequently received a demotion.
Butler sued San Miguel County under the lawful activities statute and the Access Act. To Butlers first claim, state law generally bars employers from terminating a worker who engages in lawful activity during non-working hours. There are exceptions if the activity is related to the employees job or shows the appearance of a conflict of interest.
District Court Judge Keri A. Yoder determined Butler had no claim under the law as written, and the Court of Appeals panel upheld her ruling.
Had the legislature intended to include demotions or other adverse employment actions within the scope of the statute, it could have said so, wrote Gomez in the March 11 opinion.
The Access Act, formally titled the Freedom of Legislative and Judicial Access Act, outlaws employment policies that prohibit employees from testifying before a legislative committee or a court, or retaliate against employees for doing so. However, the prohibition only takes effect if the workers testimony is at the request of the committee or court.
Yoder sided with San Miguel County, but the appellate panel described the law as ambiguous. It was unclear, Gomez indicated, what the legislation meant when it characterized the request of a court.
The Access Act does not specify the request must come from a judge, Nicholas Mayle, Butlers attorney, told the panel at oral argument. "A court is a broad term.
Elaborating in the opinion, judges, Gomez reasoned, do not normally ask witnesses to testify. That job is left to the parties in a court proceeding and their attorneys. One member of the panel, Judge Diana Terry, said she had only seen one instance in 14 years of a judge issuing a subpoena.
The appellate panel looked to the legislative session of 1997, when the law was up for debate, for answers. At the time, some lawmakers reportedly were concerned about the possibility of employees demanding time off of work to talk with General Assembly members or testify before a committee about any old matter.
Therefore, the legislature amended the bill to only cover testimony at the request of lawmakers.
The appellate judges interpreted that gesture to mean employees could invoke the statutes protections if and only if they had a legitimate reason to go to the legislature or the court, Gomez wrote.
Applying this logic to court proceedings, the Court of Appeals panel determined it was not the General Assemblys intent to protect an employees appearance before a judge only if there were a court order or a subpoena. Consequently, the Access Act bars employers from taking adverse action against workers whom a lawyer or litigant calls to testify.
"I don't know that the ruling expands the rights under the Access Act, but I think it helps publicize the protection that's available for employees," said Damon Davis of Killian, Davis, Richter & Mayle, who represents Butler. San Miguel County did not immediately respond to a request for comment.
The appeals panel reinstated Butlers claim under the Access Act and sent the matter back to the district court to move forward.
The county's response to Butler's testimony has been at issue in the courts for several years. Previously, Butler filed a federal claim in the same incident, arguing San Miguel County violated his First Amendment right to freedom of speech when it retaliated against him for his testimony.
By a vote of 2-1, a three-member panel of the Denver-based U.S. Court of Appeals for the 10th Circuit rejected his claim. A majority on the panel concluded that as a government employee, Butlers testimony was motivated by personal reasons, and had nothing to do with issues in the public interest. Therefore, he had no protection from his employer.
In July 2019, Butler asked all 12 judges on the 10th Circuit to review his case as a group. Only four members voted to hear the case, falling short of the threshold. Senior Judge Carlos F. Lucero, who was also the dissenting member of the earlier panel, argued afterward that the panel's majority was mistaken because state of Colorado treats the wellbeing of children in custody proceedings as a matter of public interest.
The precedent announced by this panel, which allows local governments to interfere with both the rights of litigants and witnesses and in which the local government has no concern, must not be allowed to stand, wrote Lucero.
Butler subsequently appealed to the U.S. Supreme Court, and organizations including the National Whistleblower Center and the First Amendment Clinic at Duke Law School filed briefs supporting him. Butler relied on a2014 decision from the Supreme Court that established a First Amendment protection for public employees who testify in court apart from their normal job duties but only if compelled by a subpoena.
He asked the justices to review his case, arguing the 10th Circuit had effectively chilled the free speech rights of government workers.
Allowing government employers to punish employees for testimony given in a child custody proceeding opens the door to a much broader scope of government regulation of employee speech than has previously been tolerated, wrote Butlers lawyers, among whom was the Obama administrations former Acting Solicitor General, Neal Katyal. Government employees, fearful of losing their jobs or facing other punishment, will be forced to censor any speech they believe may trouble their supervisors no matter how far afield it is from the job context or how important the speech may be to their family and friends.
In December 2019, the justices declined to hear the appeal.
The case is Butler v. Board of County Commissioners for San Miguel County.
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