COLORADO
WRONGFUL DISCHARGE
The employment attorneys
at Baird Quinn receive telephone calls on a daily basis from recently
terminated employees. The callers
typically describe what they perceive to be “arbitrary” or “unfair” termination
decisions, and want to know whether they have been subjected to an actionable “wrongful
discharge” under Colorado law.
All employees should
understand that, in Colorado, employees are presumed to be “at-will,” meaning
that either the employer or employee may ordinarily end the employment
relationship at any time and for any reason.
Many employers have adopted policies or entered into written agreements
with employees to document the employees’ “at will” status. Even an employee discharged under “unfair” or
arbitrary circumstances may be prevented from asserting a claim due to the
employee’s at-will status.
This does not mean,
however, that employers may discharge employees for any reason without potential liability. There are important exceptions to
the traditional employment at-will doctrine.
As a result, employees may have "wrongful discharge" or
"unlawful termination" claims in a variety of situations. Baird
Quinn’s wrongful discharge attorneys regularly represent clients in wrongful
discharge cases. If you have questions
about a termination constitutes a wrongful discharge under Colorado law,
please contact Baird Quinn’s wrongful discharge attorneys to discuss your
circumstances.
A Wrongful Discharge
Claim May Exist under Federal Statutes
Several federal statutes
give rise to a wrongful discharge claim in the event an employee is discharged
due to prohibited factors, such as race, national origin, sex, disability,
religion, military status or service, protected leave or other protected characteristics. These statutes also provide a wrongful
discharge remedy in the event an employee is discharged because of certain
protected activity, such as filing a charge of discrimination,
participating in a discrimination proceeding, or otherwise opposing
discrimination or harassment.
Under these statutes, employers are legally barred from discharging “at-will”
employees under many circumstances, such as:
• Because the employee filed a claim of discrimination, either on the
employee’s own behalf or on behalf of another employee.
• Because an employee complained about sexual
harassment.
• Because an employee participated in an internal investigation of a
discrimination or harassment complaint.
• Because an employee testified against the employer in an administrative
or court proceeding.
• Because an employee has complained about or reported
a violation of the employment laws.
• Because an employee is pregnant or needs to take
time off under the FMLA or under military service obligations.
• Because of an employee’s race, religion, sexual orientation and numerous
other protected statuses.
• Because an employee complained about fraudulent accounting practices at a
publicly traded company.
These are only a few examples of situations in which at-will
employees may have “wrongful terminations” under Federal statutes.
A Wrongful Discharge
Claim May Exist under Colorado Statutes
Colorado statutory law
may also provide the basis for a wrongful discharge claim. As with federal law,
Colorado law prohibits discharge decisions based upon several protected
categories, including race, gender, religion, disability, and national origin,
marital status, sexual orientation and transgender status. Colorado law also prohibits retaliation in
employment due to protected activity the same as federal law. Any discharge on the basis of these
characteristics or due to protected activity represents an actionable wrongful
discharge.
Colorado statutory law provides several additional
protections from wrongful discharge for employees. The following are only a few examples
of the Colorado statutes giving rise to a wrongful discharge claim against
public and private employers:
C.R.S. § 24-34-402.5
prohibits termination of employment for off-premise, off-duty lawful activity,
unless the activity relates to a "bona fide occupational
requirement," is "reasonably and rationally related to the employment
activities and responsibilities" of a particular employee or group, or is necessary
to avoid a conflict of interest or the appearance of a conflict of interest
with any responsibilities to the employer.
While the statute was originally intended to protect smokers, outspoken
advocates of unpopular causes, and persons who failed drug tests from off-duty
use of alcohol or prescription medication, the statute has been applied to
protect other conduct, such as off-duty complaints to governmental agencies.
C.R.S.
24-50.5-103 prohibits retaliation against a state employee for reporting a
state employer’s illegal conduct. Similarly,
C.R.S. 24-114-102 prohibits private employers under contract with the state from
discharging employees who report illegal conduct.
C.R.S. §
8-4-120 prohibits employers from intimidating, threatening, restraining,
coercing, blacklisting, discharging, or in any manner discriminating against
any employee who
has filed any complaint or instituted or caused to be instituted any proceeding
under the Colorado Wage Act “or related law” or who has testified or may
testify in any proceeding on behalf himself, herself, or another regarding
afforded protections under the Colorado Wage Act.
C.R.S. 24-34-402 also prohibits employers from
discharging employees because the person is married to or plans to marry another
employee of the employer, except that this restriction applies only to employers
with more than twenty-five employees. In
addition, this restriction does not prohibit an employer from discharging an
employee based upon marital relationship or plans under circumstances where: (a) One spouse
directly or indirectly would exercise supervisory, appointment, or dismissal
authority or disciplinary action over the other spouse; (b) One spouse would
audit, verify, receive, or be entrusted with moneys received or handled by the
other spouse; or (c) One spouse has access to the employer's confidential
information, including payroll and personnel records.
C.R.S.
§ 8-2-123 prohibits health care providers from “disciplinary action” against a
health care worker who make a “good faith report or disclosure,” which is
defined as “a report regarding patient safety information or quality of patient
care that is made without malice or consideration of personal benefit and that
the health care worker making the report has reasonable cause to believe is
true.” C.R.S. § 8-2-123(1)(b). “Disciplinary action” is broadly defined and
specifically includes dismissal from employment. C.R.S. § 8-2-123(1)(a).
A Wrongful Discharge
Claim May Exist under an Express or Implied Contract
An employee may also
have a wrongful discharge claim under an express or implied employment
contract. Generally, an employer and
employee are free to agree to any terms of employment, as long as the terms do
not violate Colorado law or public policy.
An express contract may require that an employee be discharged only for
“just cause,” or only after progressive discipline or with advance notice. In order
to prevail on the breach of an express contract claim, an employee must show
that a contract existed, the contract was breached by the employer, the
employee either substantially performed his/her obligations under the contract
and damages.
Under certain
circumstances, an implied contract may be formed between an employer and
employee, even though no express, signed, written instrument regarding the employment
relationship exits. In essence, an
“implied contract” is inferred from the circumstances of an employment
relationship, such as from verbal or written statements by the employer.
Colorado courts have found, for example, implied contracts arising from
progressive discipline policies or statements that employees will only be discharged
for “cause” found in employee handbooks. As a result, employees may be
able to assert unlawful termination claims if they are terminated without
the progressive discipline steps having been followed.
A Wrongful Discharge
Claim May Exist for a Discharge in Violation of Colorado Public Policy
Another major exception
to the doctrine of “at-will” employment arises from Colorado common law. Under the “public policy” exception to
employment at will, an employee is wrongfully discharged when the termination
is against an explicit, well-established public policy of Colorado. This exception
to the employment at-will doctrine was first recognized by the Colorado Supreme
Court in Martin Marietta Corp. v. Lorenz,
823 P. 2d 100 (Colo. 1992). In that case,
the Court held that, in order to establish a public policy wrongful discharge
claim, an employee would be required to prove four (4) elements: (1) that the employer directed the employee
to perform an illegal act as part of the employee's work related duties; (2) that
the action directed by the employer would violate a specific statute relating
to the public health, safety, or welfare, or would undermine a clearly
expressed public policy relating to the employee's basic responsibility as a
citizen; (3) that the employee was terminated as the result of refusing to
perform the act directed by the employer; and (3) that the employee had a
reasonable belief that the action ordered by the employer was illegal, and that
the employer was aware, or reasonably should have been aware, that the
employee's refusal to comply with the employer's order was based such
reasonable belief.
The public policy wrongful discharge claim has been expanded by the Colorado courts since the Lorenz decision. Colorado courts have now recognized that the following activities may support a wrongful discharge claim: (a) refusing to perform an illegal act, (b) performing a public duty; and (3) exercising an important job-related right or privilege. The Colorado Courts have recognized that terminations due to the following reasons may support a public policy wrongful discharge claim:
• Because the employee filed a claim of discrimination, either on the
employee’s own behalf or on behalf of another employee.
• Because an employee complained about sexual
harassment.
• Because an employee filed a workers’ compensation claim or reported a
work-related injury.
• Because an employee testified against the employer in an administrative
or court proceeding.
• Because an employee complained about or reported a
violation of employment, environmental or other laws.
• Because an employee is pregnant or needs to take
time off under the FMLA.
• Because of an employee’s race, religion, sexual orientation and numerous
other protected statuses.
• Because an employee reported fraudulent accounting or billing practices.
Remedies for a
Wrongful Discharge in Colorado
As they arise from
the loss of employment, wrongful discharge claims typically involve significant
claimed damages, often in the high six figures.
A prevailing employee may recover lost wages, lost benefits, other
monetary losses, emotional distress damages, punitive damages and, in some
cases, attorney fees and costs.
Experienced Denver
Wrongful Discharge Lawyers
Baird Quinn’s Colorado
wrongful discharge lawyers regularly handle wrongful discharge claims and
lawsuits on behalf of their clients. Our
Denver wrongful discharge attorneys also routinely provide pre-litigation
advice and counseling to individuals and businesses with respect to potential
wrongful discharge claims – which can be critical to the successful negotiation
or litigation of a wrongful discharge or unlawful
termination claim.
We invite you to contact
our Colorado wrongful discharge lawyers if you are either contemplating a
wrongful discharge claim or one has been threatened or actually filed against
your business. You may obtain additional information regarding our Denver
labor and employment lawyers at the following link. Contact Us