Protections for Whistleblowers in Colorado

Generally, in Colorado, an employee who is hired for an indefinite amount of time is considered an at-will employee. This means employment may be terminated by either the employee or the employer with no notice for any reason or no reason at all. However, Colorado has some protections against whistleblower retaliation for employees in both the public and private sectors.

Colorado Revised Statute sec. 24-50.5-103, protecting state employees, provides that any employee who provides or discloses certain information to certain government representatives may not be retaliated against. This does not apply, however, to employees who disclose information they know to be false or with reckless disregard for its truth or employees who disclose confidential information, such as information closed to public inspection, beyond specific government representatives. Whistleblowers are entitled to protection for revealing confidential information, however, if it relates to instances of waste, mismanagement of public funds, abuses of authority, or illegal or unethical practices when the information is reported to a designated “whistleblower review agency.” Public employees must file a written complaint within 30 days of the retaliatory incident and may only file a lawsuit if the complaint is denied.

The primary protection for private employee-whistleblowers in Colorado is provided by the public policy exception to the at-will employment doctrine. Essentially, a Wrongful Discharge in Violation of Public Policy claim may be brought when the termination of an employee is contrary to or violates a clear statement of public policy.
In order to determine whether a termination was in violation of public policy, the court looks at statutes, regulations, constitutional provisions, and codes of ethics to determine whether a given practice has widely been endorsed or prohibited. Examples of reasons for termination that courts have held are in violation of public policy. Therefore exceptions to at-will employment are refusing to perform an illegal act, such as in Kearl v. Portage, where an employee was fired for refusing to cover up what he believed was a failure in the field, as well as performing a public duty, and exercising an important job-related right or privilege, such as seeking damages for injury in Herrera v. San Luis Central Railroad Co. where an employee was terminated after seeking damages for an on-the-job injury covered under the Federal Employers’ Liability Act.

A Wrongful Discharge in Violation of Public Policy claim is often asserted in three circumstances.

1. First, when an employee disobeys a directive by her employer to engage in conduct that is illegal or contrary to clear public policy.
2. Second, when an employee exercises an employment-related right, such as seeking workers compensation coverage of an injury.
3. Third, when an employee internally or externally blows-the-whistle on their employer’s conduct that is illegal, fraudulent, or violates clear public policy.

Another distinct subset of Wrongful Discharge in Violation of Public Policy claims involves claims by professionals who are subjected to licensing requirements, and associated ethical constraints. In a recent case, the U.S. District Court for the District of Colorado found that the Colorado statutes regarding the obligations of real estate agents were sufficient statements of clear public policy. Consequently, a real estate agent could not be terminated for complying with such obligations and blowing-the-whistle on his employer’s actions that violated Colorado real estate statutes.

Colorado also provides statutory protection for private employees who are employed by government contractors, who are licensed medical care workers, who are licensed physicians, or who blow the whistle on Medicaid fraud. There are several other narrow statutory protections for Colorado employees in certain industries who report certain conduct.