What You Should Know If You Lose Your Job
By: Hollie L. Wieland
- Colorado is an “employment at will” state. Without an employment contract, you or your boss can terminate the employment relationship for no reason–or for any reason. There is a “wrongful termination” only when the employer fires an employee for reasons that are discriminatory or retaliatory or in violation of an employment contract. Bad management may affect employee morale (and the employer’s bottom line), but it does not translate into a legal violation unless the management practice is discriminatory, retaliatory or in breach of a contract. Many times unfair or unjustified terminations have no legal remedy, but you should check with an experienced employment attorney to be sure.
- Unless there is an employment contract that require notice and/or a reason for termination, an employer does not have to provide a reason for terminating an employee nor does an employer have to provide advance notice of job performance issues to give you an opportunity to improve.
- Promptly apply for Colorado unemployment benefits.
- Quitting your job may make it more difficult to recover for illegal conduct. If you voluntarily resign instead of getting fired, you can only recover lost wages if you can prove that you were “constructively discharged.” This means you will have to establish that your employer, through its acts, made working conditions so difficult that a reasonable person in your position would feel compelled to resign. The courts’ application of this standard is stringent and many claims of constructive discharge are dismissed. If possible, you should consult with an attorney before resigning.
- You do not have a legal right to your personnel file unless you are employed by a governmental agency or your employer has a policy which entitles you to a copy.
- In order to prove a case for discrimination, the discriminatory treatment must based upon an employee’s sex, national origin, race, color, religion, age, disability or perceived disability. Colorado unemployment state law also prohibits discrimination on the bases of sexual orientation and legal off-duty conduct. The fact that an employee is treated differently than other employees is not “discrimination” unless the reason for the different treatment is based on a person’s sex, national origin, race, color, religion, age, disability or perceived disability, sexual orientation or legal off-duty conduct.
- Not all harassing conduct is actionable. In order for harassing conduct to constitute an illegal practice the harassment generally must be motivated by discriminatory or retaliatory attitudes.
- Even if you were fired in breach of your employment contract, it may not make economic sense to pursue the claim. If your employment contract would entitle you to an award of $10,000 if you are successful but does not have a provision entitling you to recover attorneys fees, it would not make economic sense to prosecute a case if it will cost $20,000 in attorneys fees and costs.Under Colorado employment law, attorneys fees are awarded to a prevailing party only if there is a written law which provides for an award of attorneys fees under particular circumstances, or if there is a written contract provision providing for an award of attorneys fees. In some cases the attorneys fees which would be incurred to prosecute a breach of employment contract will exceed the potential recovery.
- For Claims Brought Pursuant to Title VII of the Civil Rights Act, Awards for Compensatory and Punitive Damages are Capped Based Upon the Number of Employees:
- At least 14 and fewer than 101 $50,000
- At least 100 and fewer than 201 $100,000
- At least 200 and fewer than 501 $200,000
- At least 500 $300,000
- While events are still fresh in your mind, prepare a detailed, written chronology of your case for your attorney’s consideration and use. Employment cases sometimes take years to resolve. For most people, the details of the events blur with the passage of time. While the events are clear in your mind, you should prepare a chronology to include every one’s full name, the dates or your best approximation of the date of events, and the details of any event, communications or actions.
- Know your deadlines and act promptly. In some cases you may have relatively short-time periods under Colorado and Federal law in which to protect your rights:
180 days from last discriminatory or retaliatory event
|Deadline for filing charge of discrimination if employer has less than 15 employees and the discrimination or retaliation alleged is based upon or sex, national origin, race, color, religion, disability or perceived disability, sexual orientation or legal off-duty conduct. If age discrimination is alleged then this is the deadline for filing for employers with less than 20 employees. Federal employees have much shorter deadlines – typically 15 days.|
300 days from last discriminatory event
|Deadline for filing charge of discrimination if the employer has 15 or more employees and the discrimination or retaliation alleged is based upon or sex, national origin, race, color, religion, disability or perceived disability, sexual orientation or legal off-duty conduct. If age discrimination is alleged then this is the deadline for filing for employers with 20 or more employees. Federal employees have much shorter deadlines – typically 15 days.|
60 days from the date wages are owed
|If you are owed wages, a written demand letter must be received by your employer within 60 days, to protect your ability to collect penalties on unpaid wages. A sample demand letter may be found athttp://www.coworkforce.com/LAB/combodemand.pdf. Be certain to keep a copy of the demand letter to send.|
|Claims of defamation, slander, libel, battery and assault|
|Claims of wrongful termination in violation of public policy;|
|Claims for Family and Medical Leave Act (“FMLA”) retaliation or interference, unless the employer “willfully” violated the FMLA, in which case an employee has three years to bring claims for FMLA violations.|
|Claims for Fair Labor Standards Act violations|
|Claims for breach of contract|
|Claims for Family and Medical Leave Act (“FMLA”) retaliation or interference if the employer “willfully” violated the FMLA.|
|Claims for Fair Labor Standards Act violations|