Filing a wrongful termination claim is difficult enough—you’ve also got to prove your claim. Colorado is an “at-will” state, meaning that you or your employer can, without cause, terminate your employment at any time. Although the claim may be resolved in mediation and never get to court, you’ll need accurate information and documentation to support and prove your claim. Here’s what we suggest.
Establishing Wrongful Termination
In the “at-will” state, you can legitimately be terminated without notice and without cause, as well as for a cause or causes, such as poor performance, excessive absenteeism, violation of policies, and other standard reasons. Most wrongful termination cases are filed by at-will employees. But there are limits, and you cannot be terminated for an illegal reason, such as discrimination.
You also cannot be terminated in retaliation for refusing to perform an illegal act, such as driving a company vehicle without proper registration, or after exercising a legal right (such as voting or jury duty.)
“Constructive dismissal,” a situation where the employer makes the work environment very uncomfortable to coerce you into quitting, is also illegal.
Other indicators of potential wrongful termination:
- Direct or circumstantial evidence of discriminatory treatment, including direct written or verbal statements, or termination of a specific group, or a firing after an employer learned your age, gender, nationality, religion or other factors
- Disparaging comments about specific groups of people, such as women or employees over 50
- Employees treated differently based on age, gender, ethnicity, etc.
- Obvious discrimination during layoffs, such as women over 40 or 50
- Supervisors, superiors or employer making biased comments about certain groups, especially in front of witnesses
You will also need to prove that your termination was illegal with documents, witness statements and other information.
It’s important to begin recording events as soon as you notice them, in case you are actually terminated. If you suspect that it may be coming, start making copies of anything relevant and storing them at home or in your cloud storage (i.e., Google Drive, Dropbox) where you’ll have them available.
- IMMEDIATELY—start writing down everything that occurred during your termination while they are fresh, similar to a diary.
- Use these details to create a timeline of the events that led up to your termination. Include names of all the individuals involved.
- Get as much paperwork as you can, especially your termination notice, which will give the official reason for termination.
- Keep copies of everything that’s in writing including layoff papers and/or termination notice.
- Request a copy of your entire personnel file, which will include pay raises, promotions, as well as any disciplinary actions or discussions. Sometimes companies rush terminated employees out of the building, so you may not have time to even pack your things. An attorney may need to subpoena your personnel file from HR later if they refuse.
- Send an email to your immediate supervisor summarizing the topics of discussion during the termination the next day. This is simply to document the discussion, and to establish a record of the meeting, not to debate. Stay professional, and don’t argue. This may be the only record you have of the meeting.
- Alternately, create a “diary entry” of the meeting with everything discussed, if you aren’t comfortable sending an email.
- Speak with coworkers who may or may not have been treated differently than you. Have they also been treated differently, or seen others being singled out for termination or disciplinary actions?
- Financial records—this includes pay stubs, bonus checks, W-2s and any other related documents. These are helpful to establish how much money you lost when after your termination.
- If you have an employee contract, add it to your file.
- In some cases, policy manuals, employee handbooks and other corporate documents may constitute an “employment contract.” Add these to your file as well.
- Are you a union member? A union contract negates the “at-will” part of your employment, and spells out the employer’s procedure and specific grounds for dismissal.
Find an attorney who handles wrongful termination cases so that he or she can guide you through the process of EEOC complaints as well as possibly filing a lawsuit before the two-year statute of limitations.
Is It Worth It?
There are a few reasons why you should pause before pursuing a wrongful termination claim.
If you’re already working, how much did you lose after your termination? If you already had a job or found one right away, you may not have lost any wages or other compensation. The amount you might receive may not be worth the cost of any legal action.
You should be completely honest with your attorney about everything related to your claim. If you’ve made comments that can be seen as inconsistent by the opposing party, you should tell him or her up front to avoid an embarrassment during mediation and/or litigation. Before making any statements, discuss them with your attorney to avoid any pitfalls that could sink your case.
You’ll likely be looking for another job the day you are terminated (or the next day.) You may have been job hunting already and caught off-guard. Think about what your next employer will see: someone who sued their former employer. Even if you don’t tell them, they could eventually find out. One of the first things an HR person or hiring manager will wonder is if you’ll sue them, too. It could be a big “red flag” and ruin your chances for another job.
Protect Your Civil Rights
There are strict laws in the US against discrimination and wrongful termination. If you believe you’ve been terminated illegally, contact our employment lawyers by calling (720) 515-6165 for a free consultation. We’re experienced in helping people like you fight back. We can help you file your EEOC complaint, and represent you in court when the time comes.