Colorado Employee Fired for Protesting Lack of Breaks May Sue for Wrongful Discharge - Sometimes!

In 1992, the Colorado Supreme Court recognized a legal claim for wrongful discharge in violation of public policy, which may allow an employee to sue if fired for refusing to violate the law or ethical standards in the course of his/her job, or for exercising an important job-related right. Courts have held that this prohibits termination of an employee for refusing to falsify documents and refusing to violate ethical standards, such as those of a certified public accountant. It also prohibits terminating an employee for filing a workers' compensation claim. As the Colorado Supreme Court observed, “an employee, whether at-will or otherwise, should not be put to the choice of either obeying an employer's order to violate the law or losing his or her job.” Martin Marietta Corp. v. Lorenz, 823 P.2d 100, 109 (Colo.1992). An employer who discharges an employee in violation of public policy is subject to a claim for damages, including emotional distress and punitive damages.

In Bonidy v. Vail Valley Center for Aesthetic Dentistry, 2008 WL 90239 (Colo.App. Jan. 10, 2008), the plaintiff dental assistant sued her employer after she was fired for protesting the denial of lunch and other breaks required by Colorado Department of Labor regulations. The Colorado Court of Appeals held that, under the circumstances, the break regulations were sufficient to support the claim of wrongful discharge in violation of public policy. The court observed, however, that not all administrative regulations are sufficient to provide a basis for this claim. In this case they were because the plaintiff's job as a dental hygienist impacted public safety. The court cited evidence that the plaintiff's job included cleaning and handling sharp medical instruments and that working without breaks could impact the quality of patient care.

Because of those patient safety concerns, the Bonidy Court reached a different conclusion from that in Crawford Rehabilitation Services v. Weissman, 938 P.2d 540 (Colo. 1997). In that case, the plaintiff, a typist, claimed she was fired after filing a complaint about denial of breaks required by Colorado regulations, and the Colorado Supreme Court ruled that this did not constitute a valid claim of wrongful discharge in violation of public policy. In Crawford, there was no indication that denying the typist breaks impacted public interests, and the Supreme Court stated, “public policy must concern behavior that truly impacts the public in order to justify interference into an employer's business decisions.”

Thus, all of the pertinent circumstances have to be taken into account in determining whether an employee who is fired for complaining about denial of required breaks would have a valid public policy wrongful discharge claim. Evidence indicating that the job in question implicates public safety or other public interests may be sufficient to support the claim. Further, firing an employee for testifying about violations of the regulations is a misdemeanor, which may subject the employer to administrative investigation and a fine of up to $1,000. See C.R.S. § 8-6-115.