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What About "At Will" Employment? What is my Protection from Discrimination? Do I Have a Claim for Wrongful Termination? What Can I do if I am Harassed? What are my Family and Medical Leave Act Rights? |
Your
Rights . . .
The above categories are some of the more common ones where employees have special legal rights, but there are numerous other categories. Remember, too, not all employees are “at will.” Thus employees who have employment contracts for a term, employees who receive verbal promises of job security, employees who rely on handbooks that promise employees rights, union employees and government employees with civil service protections may have special legal rights that protect them from termination.
What About “At Will” Employment? Frequently, employees will tell us, “I know Colorado is an ‘at will employment‘ state.” In fact, almost all states in our country are “at will employment” states. A central tenet of the American economic system is that employees are employed at the “will” of the employer and the employer is free to terminate an employee with or without cause at any time.
Even in an “at will employment” state, employees with contracts for a term, government employees with civil service protections, union employees with job security and other employees who are promised job security by their employers are not considered “at will” employees. Employees who are not employed “at will” may, depending on the terms of their employment, be able to sue their employer if they are terminated without cause.
There are also numerous exceptions to the “at will” employment doctrine that can often give employees significant rights. Some of these exceptions include:
The above categories are some of the more common ones where employees have special legal rights, but there are numerous other categories.
What Makes a Good Case?
What makes a “good” case for litigation, depends on many factors including the likelihood of success at trial, the damages involved and the extent of the “deep pocket” of the employer. The following are some factors that help make a “good” litigation case:
Most employees would much rather settle their legal claims with their employer and avoid having to file a lawsuit. In many cases, particularly where employees have a strong legal claim and reasonable severance expectations, cases can be resolved at a very early stage.
Although settlement can occur at any stage with respect to your legal employment claim, here are some common stages where settlement may occur:
Obviously, the later that settlement occurs in the process, the more expensive it is for both the employee and the employer. Remember, too, that there may be many years between the first and the last stages outlined above. If you bring a lawsuit, you should not count on it being resolved even though the overwhelming majority of lawsuits are resolved prior to trial. Indeed, the best way to ensure the settlement of a lawsuit is to be fully prepared for a trial and a subsequent appeal. Cases where settlement is less likely include the following:
What Is My Protection from Discrimination?
Discrimination against employees is not necessarily illegal. Only discrimination on a prohibited basis is illegal as is retaliation against employees who complain in good faith about prohibited discrimination. Prohibited discrimination includes discrimination by an employer against an employee because of the employee’s race, religion, national origin, age, sex, pregnancy, or disability. Sexual orientation is also a prohibited basis for discrimination in certain cities in Colorado including Denver and Boulder.
Discrimination on the basis of race, religion, national origin, pregnancy, and sex is prohibited by federal and Colorado state law. The federal statute, Title VII, applies to all employers with 15 or more employees and provides for the recovery of unlimited economic damages, up to $300,000 in emotional distress and/or punitive damages and attorneys’ fees. Employees who wish to pursue a lawsuit under either the federal or state now MUST first file a charge of discrimination with the EEOC (Equal Employment Opportunity Commission) or CCRD (Colorado Civil Rights Division) within 300 days from the date of their discrimination.
Discrimination on the basis of age is also covered by a federal statute, the Age Discrimination in Employment Act (ADEA), and by state law. The ADEA statute is similar to Title VII, but provides different remedies. An employee who is discriminated on the basis of age does not have a remedy for emotional distress and punitive damages, but can sue for double the amount of the back pay if the employee can show that the discrimination was “willful”.
Employees who wish to pursue disability discrimination are covered under the Americans with Disabilities Act (ADA) and have similar requirements to file first with the EEOC or CCRD and similar damages as provided unter Title VII. For further information on filing with the EEOC, go to www.eeoc.gov. To file with the CCRD, go to www.dora.state.co.us/civilrights .
While employees are not required to be represented by an attorney when they file their charge with the EEOC or CCRD, we believe they generally are more likely to obtain a favorable result if an employment attorney represents them when they file their charge of discrimination with these agencies.
Do I Have a Claim for Wrongful Termination?
What Can I Do If I Am Harassed at Work?
Sexual harassment and race harassment are both prohibited under Title VII. Employees who wish to pursue Title VII sex and/or race harassment claims are required to file a charge of discrimination with the EEOC or CCRD within 300 days (See Discrimination Section).
Employees can bring a sexual harassment claim where:
Unless there is adverse employment action taken against the employee, the employer may have a defense in a sexual harassment claim where the employee did not utilize available grievance procedures to first permit the employer the opportunity to remedy the problem. Both male and female employees can be victims of sexual harassment.
Race harassment claims usually involve a hostile environment where employees who are members of a minority are treated in a disrespectful manner. Like sexual harassment claims, the employer may have a defense in certain circumstances if the employee does not utilize available grievance procedures.
What are my Family and Medical Leave Act Rights?
Under the Family and Medical Leave Act (FMLA), employees who have been employed for more than a year by employers with at least 50 employees, may have the right to take up to 90 days unpaid leave for the birth of a child, a chronic or serious medical condition, or to help take care of a child, parent or spouse with a chronic or serious medical condition.
Employees who take FMLA leave have the right to return to their former position and may not be discriminated against by their employer.
FMLA leave can, at the option of the employer, run concurrently with other paid sick or disability leave. Employees on FMLA leave have an obligation to the extent possible to keep their employer informed as to the reasons and duration of their leave. Employees should be careful about taking more than 90 days leave regardless of how the leave is designated by the employer because they may not have a protected right to return to work.
Employees who are concerned about their FMLA rights or who are afraid that they may be terminated after a FMLA leave should see an employment lawyer .
Can I Enforce A Verbal Promise?
Employees often believe they cannot legally enforce a verbal promise. This is not necessarily true. In Colorado specific promises by employers that are relied upon by employees may be legally enforceable if there is no disclaimer by the employer. If you have an important verbal promise by your employer which has been broken, you should see an employment attorney for legal advice. Remember to bring all offer letters, written contracts and policy handbooks for the attorney to review.
Do’s and Don’ts for Termination
DO
DON’T
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