Employment Law Overview For Colorado

While Colorado case law continues to refer to the concept of "employment-at-will" meaning that if there is no agreed "term" of employment, an employee may be fired at any time, in truth there are very few employment terminations that rely on this principle. In practice, the exceptions to this rule are many.

Employers who establish policies of "progressive discipline" are sometimes held to this policy even though they distribute hand books which state that the "policy" is not a contract. Even if there is no agreement, some representations may be enforced. Employers may not fire an employee for his or her personal activities away from the job unless that activity bears on the employment. Title VII (42 U.S. Code 2002e-2 (a) (1) precludes discrimination based on sex. This has been interpreted to include sexual harassment and crosses gender lines. Discrimination in respect to age is forbidden. "Baby boomer" terminations of employees who have worked for the same company for 30 years are not uncommon. In light of the age statute, large severance packages are often negotiated.

The Family Medical Leave Act and the Americans with Disabilities Act together with Age, Race, Sex and National Origin claims are initially administered and investigated by the E.E.O.C. or the Colorado Civil Rights Commission. A short statute of limitations is provided and if the case is not taken, an employee only has 90 days following rejection to file a lawsuit. These cases are expensive and usually only the large cases are handled by the federal or state agencies.

Employees who are fired after refusing to perform an act or fail to perform an act which violates the public policy of Colorado are said to have been "wrongfully terminated" even though they may be employees-at-will. However, an employee who has falsified their resume is subject to fraud defense by the employer who can claim that they would not have hired the employee in the first place thereby defeating even a contract claim.

Written employment contracts are enforced as any other contract. However, contrary to commercial contracts, Colorado does not recognize an implied duty of "good faith" in employment agreements. Express covenants of "good faith" are enforced. Employment agreements that arise out of the employment may be enforced (such as for particular benefits) even though the employee is an employee-at-will.

Co-employees or supervisors who wrongfully "interfere" with an employment relationship can be held responsible if they interfere for personal rather than for reasons related to their employment. Civil servants who are sued in their official capacity are entitled to sovereign immunity unless it can be shown their actions were personal. A failure to overcome a "sovereign immunity" defense can result in an award of attorneys fees against the claimant or the claimant's lawyer. On the other hand, an employee who is not paid on time without justification can recover legal fees under the Colorado Wage Claims Act. Agreements "not-to-compete" are void unless specific exceptions are found.

There are many more permutations of various employment claims that can be made by employees. Labor statutes dating back to Colorado's mining days and its labor strife remain "on the books." A practitioner not fully familiar with all of the available rules should align themselves with legal counsel who are up to date in this areas as a practice standard.

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