I Have Legal Rights?
About "At Will" Employment?
Makes a Good Case?
I Settle my Claim?
is my Protection from Discrimination?
I Have a Claim for Wrongful Termination?
Can I do if I am Harassed?
are my Family and Medical Leave Act Rights?
I Enforce a Verbal Promise?
& Donts for Termination
Rights . . .
This section answers common questions relating to general
legal rights of employees.
I Have Legal Rights?
Employees who are treated unfairly or who are terminated without cause
may have legal rights that are being violated. Although most employees
in the United States are employed “at will,” meaning they can be terminated
without justification, employees still may have important rights.
Some of these rights include:
right (by Federal and Colorado statutes) not to be discriminated
against because of gender, age, race, religion, national origin,
pregnancy or disability;
right not to be subjected to sexual harassment;
right not to be retaliated against for opposing illegal practices
by your employer;
right not to be terminated or discriminated against because of taking
right, unless an exempt employee, to be paid proper overtime.
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?
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
There are also numerous exceptions to the “at will”
employment doctrine that can often give employees significant rights.
Some of these exceptions include:
Employees who are discriminated against because of gender, age,
race, religion, national origin, pregnancy or disability;
Employees who are subjected to sexual harassment;
Employees who are retaliated against for opposing illegal practices
of their employer;
Employees who are terminated or discriminated against because
they take FMLA leave;
who are not being paid proper wages and overtime.
The above categories are some of the more common
ones where employees have special legal rights, but there are numerous
You may have a “good” case for settlement, but not a “good” case to
bring a lawsuit. A “good” case for settlement is a case where
the employer is highly motivated to settle with you. This can
be because you have a “good” case in terms of the likelihood that
you will win in court or it can be for other reasons. Some of
these other reasons include:
The employer’s distaste for litigation or conflict;
The employer’s need or desire to maintain a friendly relationship;
The employer’s need to conceal something;
The employer’s need to peaceably get rid of you as an employee;
The employer’s sense of obligation to you.
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:
“Smoking guns.” These are statements made by managers to
you or other witnesses indicating their intent to discriminate
against you. An example of a “smoking gun” in a sex discrimination
case would be a statement by your manager declaring that “women
don’t belong in the workplace.” An example of a “smoking
gun” in an age discrimination case would be a statement by your
manager declaring that “you are too old to do a good job.”
Employers who have excellent performance evaluations and who have
been employed for a long period of time and who are terminated
without justification by their employers;
A large profitable employer;
Cases involving a number of employees who have received the same
illegal treatment by the employer and who wish to pursue their
Discrimination cases where there are statistics or statements
that show that women, older employees or minorities are not receiving
the same treatment as others;
Cases where employees have a number of witnesses who will support
them with regard to their good performance and/or their illegal
treatment by their employer;
Cases where there is a clear legal theory that permits recovery
such as in the following circumstances:
Where employees are fired in retaliation for opposing illegal
Sexual harassment cases;
Discrimination cases based on age, race, national origin or
disability or because of an employees’ FMLA leave;
A contract, enforceable verbal promise by the employer, or
handbook provision by the employer that has been violated.
Can I Settle My Claim?
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.
settlement can occur at any stage with respect to your legal employment
claim, here are some common stages where settlement may occur:
Prior to termination, there may be a negotiated termination settlement
which provides severance to the employee;
the employee’s termination and after an initial demand letter
by an attorney;
part of the mediation process at the CCRD or the EEOC with regard
to a discrimination charge;
Immediately before or after filing a lawsuit;
After the “discovery phase” of a lawsuit (i.e. after formal statements
are taken, all documents exchanged and written questions answered
regarding the claims and evidence of the parties);
Before, during or after trial;
During or after appeal.
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.
where settlement is less likely include the following:
reductions in force;
Where the wrong-doer is also the individual who will decide whether
the company will settle;
Where the employer is in financial trouble;
Where companies have a corporate philosophy that precludes settlement.
What Is My Protection from 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.
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.
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”.
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
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?
Employees often think that the term “wrongful discharge” or “wrongful
termination” refers to any unjust termination and that there is a specific
legal claim for unjust termination. “Wrongful discharge” refers
only to a specific legal claim recognized by Colorado courts that permits
employees to sue for damages where an employee is terminated for opposing
conduct that is illegal or against public policy. Unfortunately,
there is no recognized legal claim that permits an employee to sue for
a termination just because the termination is unjust or wrong.
What Can I Do If I Am Harassed at Work?
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
can bring a sexual harassment claim where:
The employer takes an adverse employment action against an employee
because he or she does not comply with a request for a sexual
The employee faces a hostile environment where he or she is treated
with hostility because of their sex;
The employee faces an environment at work that includes unwelcome
sexual advances or other unwelcome sexual jokes, comments, or
physical contact that renders the environment “hostile.”
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.
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
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
I Enforce A Verbal Promise?
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.
and Don’ts for Termination
Get Reference Letters from your supervisors.
Ask your employer to give you a written explanation for your termination.
Seek advice from an employment lawyer if you have any question
about whether or not your termination gives rise to a legal claim.
Return all company property including all company documents.
Review your non-compete agreement, if any, and consult with an
employment attorney about its enforceability if this is an issue
you have not received all the back wages and commissions due you,
make a formal written demand on the company including your name
and address where the wages and commission may be sent to you.
If you still do not receive anything, see an employment attorney
as soon as possible.
you have been terminated through no fault of your own or if you left
because of a significant change in your working conditions, you may
be entitled to unemployment compensation. Call the Colorado
Department of Labor at 303-318-9000 to file an unemployment claim.
You can also file on line at
you think you may have been discriminated with regard to your termination
on the basis of age, sex, religion, race, national origin or disability
you may need to file a charge of discrimination with the EEOC or the
CCRD within 300 days of your first notice concerning your termination.
While you can file a charge without legal representation, you should
seek employment counsel to help you in this process.
Take the names and contact information of other company employees
who are valuable contacts or who, if you are considering legal
action, may be witnesses in your case or have similar legal claims.
Be careful with respect to any verbal or written statements you make
to company employees and remember those statements may later be
used against you.
Don’t openly express your anger or make any threats.
Don’t sign a release of claims unless you are certain that you
do not want to pursue legal action. Consult an employment
lawyer first if possible.
Don’t assume that you won’t be able to negotiate better terms
for your severance arrangement. If possible, seek the assistance
of an employment lawyer in this regard.
Don’t say or do anything that provides your employer with “cause”
for your termination. Even though you may have already been
given notice of your termination, continue to respect all company
Don’t take any company documents that are not yours, even if they're needed to “prove
Don’t send any written complaint or grievance letters to company
officers, human resources or managers without first consulting
an employment lawyer for advice.
Don’t write any flattering letters to your boss or to the company
if you are considering taking legal action.