Colorado § 24-50.5-103 - Retaliation prohibited - repeal.

§ 24-50.5-103. Retaliation prohibited - repeal.

(1) Except as provided in subsection (2) of this section, an appointing authority or supervisor shall not initiate or administer any disciplinary action against an employee on account of the employee's disclosure of information. This subsection (1) does not apply to an employee who discloses:

(a) Information that he or she knows to be false or who discloses information with disregard for the truth or falsity of the information;

(b) Information from public records that are closed to public inspection pursuant to section 24-72-204; or

(c) Without lawful authority, information that is confidential under any other provision of law or closed to public inspection under section 24-72-204 (2)(a)(I) and (2)(a)(VIII).

(2) An employee who wishes to disclose information under the protection of this article is obligated to make a good-faith effort to provide to his or her supervisor or appointing authority or member of the general assembly the information to be disclosed prior to the time of its disclosure.

(2.5) An appointing authority or supervisor shall not initiate or administer any disciplinary action against an employee on account of the employee's disclosure of information to the fraud hotline administered by the state auditor in accordance with section 2-3-110.5; except that this subsection (2.5) does not apply to an employee who discloses information with disregard for the truth or falsity of the information.

(3) to (11) Repealed.

Source: L. 79: Entire article added, p. 966, § 1, effective June 15. L. 2016: Entire section amended, (SB 16-056), ch. 294, p. 1195, § 3, effective June 10. L. 2017: (2.5) added, (HB 17-1223), ch. 243, p. 1004, § 3, effective August 9.

Editor's note: Subsection (11) provided for the repeal of subsections (3) to (11), effective May 15, 2018. (See L. 2016, p. 1195.)

ANNOTATION

In enacting this section the general assembly created a non-contractual, statutory action for retaliatory discharge that is tortious in nature. State Pers. Bd. v. Lloyd, 752 P.2d 559 (Colo. 1988).

Whistleblower act protects employee of one state agency from disciplinary action due to his disclosure of information about another agency. Lanes v. O'Brien, 746 P.2d 1366 (Colo. App. 1987).

Because the whistleblower statute was intended to create a non-contractual, statutory action that is tortious in nature, a claim brought under the statute is subject to the notice requirements of the Colorado governmental immunity act. Conde v. State Dept. of Pers., 872 P.2d 1381 (Colo. App. 1994).

Whistleblower did not substantially comply with the notice provisions of the Colorado governmental immunity act where the notice contained no references whatsoever to incidents of retaliatory harassment or failure to promote. Conde v. State Dept. of Pers., 872 P.2d 1381 (Colo. App. 1994).

Burden of proof. In determining whether reduction of terminated state employees' unemployment benefits would violate the protection granted by the statute, the claimant must establish that his disclosures fell within the protection of the statute and that they were a substantial or motivating factor in the employer's opposition to his receipt of benefits and, if the claimant makes such initial showing, then the employer must establish by the preponderance of the evidence that it would have reached the same decision even in the absence of the protected conduct. Ward v. Indus. Comm'n, 699 P.2d 960 (Colo. 1985).

Whistleblower's allegations of invasion of privacy are not "disciplinary actions" within the meaning of subsection (1). Conde v. State Dept. of Pers., 872 P.2d 1381 (Colo. App. 1994).

Trial court properly instructed jury on the elements and burden of proof, therefore, jury instructions were not conflicting or defective. Taylor v. Regents of the Univ. of Colo., 179 P.3d 246 (Colo. App. 2007).