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

 


Baird Quinn LLC
The Bushong Mansion
2036 E. 17th Avenue
Denver, Colorado 80206
303.813.4500 (o)
303.813.4501 (f)

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