Democrats are livid that Republicans are running a ballot measure to end no-fault divorce in Colorado. Rather than allow women to choose whether to leave their husbands (or vice versa), the measure instead would require women to prove to a judge that she has valid cause to leave. A judge who disagreed then could force the woman to remain in the marriage against her will.

No, wait, I got my wires crossed. Some “progressive” Democrats actually proposed the measure, and it applies to employers, not spouses. But the premise is the same. The goal is to allow government to require continued association even when one party is unwilling, rather than respect and protect people’s rights to associate by mutual consent.

As Jesse Paul reports, “Initiative 43 would prohibit companies with more than eight employees from firing or suspending a worker without just cause,” as defined by politicians and interpreted by judges. “The proposal was filed by Dennis Dougherty, who leads the AFL-CIO in Colorado, and True Apodaca, political director at SEIU Local 105,” Paul continues.

Apparently “progressives” just are not going to stop with their regulatory schemes until they destroy the business environment in Colorado. If this measure ever passes, many companies will move out of state, and others will look elsewhere rather than set up shop in Colorado.

Many “progressives” seem unable or unwilling to consider how legislation affects incentives. Sure, so-called “just cause” rules partly protect existing employees from being fired, at least until their company leaves the state or falls into bankruptcy. But such ill-conceived regulations also make businesses much more wary of hiring anyone. So overall employment will suffer, and “protected” employees will have a harder time finding a better job.

By the way, the bit about ending no-fault divorce is not just fantasy. Last year NPR ran an interview with law professor Joanna Grossman. NPR noted that “some Republicans in a few red states, including Louisiana, Texas, Nebraska and Oklahoma, want to end or limit no-fault divorce.” Grossman warned that “the inability to get divorced is used as a way to trap people in bad marriages.” In some contexts, progressives see perfectly clearly the problems with forced association.

Proposed language a disaster for business

Generally, business owners should be able to run their businesses as they see fit, consistent with the (actual) rights of others, not be forced to sacrifice their own judgment to that of politicians and judges.

The proposed language for Initiative 43 would impose a bureaucratic and legal nightmare on Colorado businesses.

The measure defines “just cause” as including “substandard performance,” “material neglect of assigned job duties,” and “repeated violations of the employer’s written policies.” The measure also includes “gross insubordination” and “willful misconduct that affects job performance.”

And if a judge decides that an employee’s insubordination was not sufficiently “gross,” or that the misconduct was not sufficiently “willful,” or that the insubordination or misconduct, however gross and willful, did not “affect job performance,” then the measure permits the judge to force the employer to keep the employee on staff.

The measure also deems a firing “just” if “due to specific economic circumstances that directly and adversely affect the employer.” Besides the fact that a judge then must determine the meaning of the slippery terms “directly” and “adversely,” notice what the measure leaves out. An employer could not fire someone because the position no longer is needed, the employer wishes to take his business in a different direction, or the employer believes someone else could do the job better.

The measure does have exceptions for new employees up to six months, for contractors, and for “a governmental entity,” because obviously government should not have to play by the rules it imposes on others.

To fire someone, an employer must, within seven days, deliver to the employee a “written notification . . . that includes every reason the employer believes there is just cause for discharge or suspension.”

Then, the person who was fired has 180 days to “file civil action in state district court.” What happens if the judge sides with the employee? “The court may order affirmative relief that the court determines to be appropriate, including reinstatement or hiring of employees, with or without back pay; . . . front pay; or any other equitable relief the court deems appropriate.” The court also may award attorney fees. The terms “appropriate” and “equitable” are completely arbitrary and left to the court’s complete discretion.

If this measure ever passes, we might as well hang signs at our borders declaring, “Closed for business.”

Montana’s rules less stupid

The proposed measure in Colorado is just like established law in Montana, or so you might claim if you are an activist willing to fudge or a lazy journalist who can’t be bothered to read the relevant statutes.

The Montana statutes establish a probationary period for workers of up to 18 months (see Montana’s statute 39-2-910), three times longer than what the Colorado measure calls for, during which “the employment may be terminated at the will of either the employer or the employee on notice to the other for any reason or for no reason” (39-2-904).

More importantly, Montana considers a “good cause” for firing someone to include “other legitimate business reasons determined by the employer while exercising the employer’s reasonable business judgment” (39-2-903). That’s pretty broad, and there’s nothing like that in the Colorado measure.

The Montana language is still bad, because business owners should not have to justify their business decisions to a judge, but at least the Montana law does allow such justification.

Finally, Montana courts are more restrained in what they can impose on employers (39-2-905). Although Montana courts can award back wages for up to four years, minus wages at a new job or “amounts the employee could have earned with reasonable diligence,” courts cannot force an employer to take back an employee or otherwise arbitrarily decide what is “appropriate” or “equitable.”

Montana laws still a bad model

As Aaron Irion points out for the Niskanen Center, Montana’s “good cause” laws of 1987 largely were a correction to even worse policies imposed by the courts. According to a 2005 article in Industrial and Labor Relations Review, the laws largely mitigated the harmful effects of the previous regime (link via ChatGPT.) And in 2021 the Montana legislature made the laws less onerous for employers.

But don’t let the fact that Montana’s system could be even worse mislead you into thinking it should be a model for Colorado or anywhere else. USA Facts says Colorado had a GDP of $437.1 billion in 2023, when we had a population of around 5.9 million. Meanwhile, Montana had a GDP of 54.7 billion and a population of 1.1 million. If you do the math, you’ll find that Coloradans tend to be profoundly more productive.

Indeed, while GDP per capita in Colorado is near the top of states, in Montana it is near the bottom. So “Hey, let’s be more like Montana” in terms of our economy hardly is a rallying cry we should get behind. And remember that the Colorado proposal is far worse than what Montana has.

Yes, I realize that the ballot measure partly is a form of economic extortion to try to strong-arm Governor Jared Polis into signing anti-right-to-work legislation and deter a potential right-to-work ballot measure. That certain “progressives” will threaten to undermine Colorado’s economy to try to get their way should tell you all you need to know about their integrity and economic sense.

Ari Armstrong writes regularly for Complete Colorado and is the author of books about Ayn Rand, Harry Potter, and classical liberalism. He can be reached at ari at ariarmstrong dot com.