Do I Have Legal Rights?

What About "At Will" Employment?

What Makes a Good Case?

Can I Settle my Claim?

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?

Can I Enforce a Verbal Promise?

Do’s & Don’ts for Termination

Your Rights . . .


This section answers common questions relating to general legal rights of employees.
 

Do 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:

 

  • The right (by Federal and Colorado statutes) not to be discriminated against because of gender, age, race, religion, national origin, pregnancy or disability;

  • The right not to be subjected to sexual harassment;

  • The right not to be retaliated against for opposing illegal practices by your employer;

  • The right not to be terminated or discriminated against because of taking FMLA leave;

  • The 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?
 

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:

  • 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; 

  •  Employees 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 other categories.  

 

 

 

What Makes a Good Case?


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.

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: 

 

  • “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 case together;

  • 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 practices;

    • 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?

 

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:

  • Prior to termination, there may be a negotiated termination settlement which provides severance to the employee;

  •  After the employee’s termination and after an initial demand letter by an attorney;

  •  As 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.

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:

  •  Large 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?

 

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?


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?

 

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:

  • The employer takes an adverse employment action against an employee because he or she does not comply with a request for a sexual favor;

  • 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.” 

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

  • 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 for you.

  •  If 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.

  •  If 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 www.coworkforce.com.

  •  If 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

  • 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 rules.

  • Don’t take any company documents that are not yours, even if they're needed to “prove your case.”

  • 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.