Firing for Off-Obligation Professional-Accomplice-Flag Speech Might Violate Colorado Statutes – Motive.com

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Firing for Off-Duty Pro-Confederate-Flag Speech May Violate Colorado Statutes – Reason.com

For more information on the state statutes discussed here, see this article (and particularly pages 313-15 on the potentially broad scope of “political activity” beyond campaigning). From the decision of Judge Michael E. Hegarty on Wednesday in Patterson-Eachus v United Airlines, Inc. (D. Colo.) (Pictures added from court record):

The plaintiff worked for the defendant in various functions for thirty-one years, most recently as head of airport operations. Her behavior and her performance were not a problem until, as the defendant describes it, she posted certain “divisive” messages on Facebook.

{Sometime in August 2017, on her personal time and on her computer, the plaintiff re-posted her support for the preservation of her high school’s “rebel” mascot, Weld Central High, on her private Facebook page, including a cartoon soldier on a flag the Confederate is superimposed (the “Rebel Mascot Post”).

At some point in August 2017, the plaintiff posted a video on her private Facebook page of an African American in front of a Confederate flag who, among other things, believed that the Confederate flag is not the evil that many people say (the “flag post of the Confederate “).}

The defendant learned of this news, investigated it, noted other issues with the plaintiff’s behavior in the workplace, and fired the plaintiff for allegedly finding that the plaintiff’s negative interactions with subordinates irreparably affected her ability to monitor.

[1.] Under Colo. Rev. Stat. § 24-34-402.5:

It is a discriminatory or unfair employment practice for an employer to terminate the employment relationship with an employee because that employee is doing a legitimate activity outside of the employer’s premises during the non-working period.

This law “should provide protection for employees who engage in activities which are personally unpleasant for their employer, but whose activities are legal and not related to the professional duties of an employee.” The plaintiff claims that she was fired for her private job posting material on her own Facebook account.

[T]The recording contains … evidence that the plaintiff was dismissed for her Facebook activity … The letter of resignation dated October 16, 2017 begins with the statement that the plaintiff has published “inappropriate and racially insensitive” material on her Facebook account. It is said that this posting is “a clear violation of our United Social Media Policy and the [UAL] Guidelines. “It informs her that she has been disciplined and investigated because of the Facebook post. The letter also accuses the plaintiff of” continuing “[ing] to deny that the racially offensive Facebook post was inappropriate and that there was something wrong with posting the racially offensive video on Facebook where some of your direct reports could see it. “

Next, the letter lists six different reasons why the defendant believed the plaintiff had injured [employer] Guidelines. Most of these reasons would apply to the Facebook posts as well as to the plaintiff’s direct interactions with subordinates.

Finally, the letter states that the plaintiff has broken the defendant’s confidence in her while declaring that the plaintiff will not receive progressive discipline because the “process of progressive discipline is based on behavioral change, but this is not possible when You don’t acknowledge what you’ve done. ” was wrong and take responsibility for your abusive and inappropriate behavior. “Again, the letter directly accuses the plaintiff of having denied the inappropriateness of the Facebook activity. Whether the Facebook posts contributed to the termination is controversial.

The defendant next relies on a statutory exception which allows the prohibition of conduct in relation to “the employment activities and responsibilities of a specific employee or group of employees and not all employees of the employer”. The UAL guidelines cited by the defendant apply to all employees, not just to the supervisory authorities.

While it may be true that United keeps regulators at a higher level in some ways, that cannot change the clear meaning of a statute. If an employer’s policies explicitly apply to “all workers,” I cannot legally determine that the legal language of the exception has been met.

“”[T]His part of the statute was likely designed to allow employers to require certain high-level employees to refrain from activities that would question their competence. “The problem is the defendant’s attempt to retrospectively curtail his higher standards.” “Certificate of a legal exception that enables an employer” to require certain high profile members not to participate in activities. “Just like …”[p]Promoting a positive image for Delta is not the exclusive province of baggage handlers. ” [the job category of employees in a previous case -EV] This also applies to the prohibition of racially offensive behavior that is not exclusively reserved for the supervisory authorities.

In addition, the Colorado Court of Appeals interpreted the legal exception to apply to activities inherently associated with employment and arising out of plaintiff’s particular duties. Williams v Rock-Tenn Servs., Inc. (Colo. App. 2016). “Such activities and responsibilities must be unique for or within the exclusive province of the employee or group of employees.”

In Williams, the plaintiff was the manager of a cardboard factory. The system did not pass an internal audit. Management scheduled a meeting to discuss the exam with the plaintiff. Instead of attending the meeting, the plaintiff went on vacation and was subsequently released. The court unobtrusively ruled that attending such a meeting is an inherent requirement for the work of an operations manager: “[The Lawful Off-Duty Activities Statute] is designed to protect employees from dismissal for private personal activities, not from the adverse employment consequences of a vacation that conflicts with a meeting that is reasonably and rationally related to the party’s employment. “…

Insofar as the plaintiff can prove to a jury that the defendant relied on the plaintiff’s conduct when dismissing the contract, this statutory exception does not apply. This has to be decided by a jury.

[2.] Colo. Rev. Stat. § 8-2-108 [a separate statute] … Prohibits an employer from dismissing an employee for “engaging in or participating in politics” or “political activity”. For the purposes of the overall assessment, the defendant assumes that the behavior in question (supporting the rebel mascot, commenting on the meaning of the Confederate flag) constitutes a political activity within the meaning of the law.

The only argument of the defendants regarding the summary judgment is that the plaintiff was not dismissed because of her Facebook posts. I have already established that the basis (s) for your termination is a problem of fact. Therefore, it is inappropriate to make a comprehensive assessment of this claim.