Tips to winning a wrongful termination claim in Colorado

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.

Colorado wrongful termination claim lawyers.

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.

Keeping records to prove wrongful discrimination

It’s important to begin recording events as soon as you notice them, in case you are actually fired. If you suspect that wrongful termination 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 wrongful 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 wrongful 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 filing for wrongful termination?

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.

Is it discrimination? A few questions you need to ask

Merriam-Webster’s Dictionary defines discrimination as,

  • prejudiced or prejudicial outlook, action, or treatment, racial discrimination
  • the act, practice, or an instance of discriminating categorically rather than individually

It can also mean the act of distinguishing or differentiating.  But in the area of civil rights, discrimination isn’t always cut and dried.

Is It Discrimination? A Few Questions You Need To Ask

At-will employment and discrimination

Colorado is one of the many states that have employment-at-will. This means that you or your employer can implement or terminate your employment at any time. Two weeks’ notice is a business practice, not the law, and you can be terminated on a moment’s notice, without notice. The company doesn’t need a reason, nor do they have to let you know in advance (although many companies do give advance notices of layoffs.)

You also don’t need a reason to quit, nor let your employer know in advance that you are terminating your employment. However, giving inadequate notice may affect your application for unemployment benefits. (Even if you are discharged for a different reason like medical conditions, harassment in the workplace, and hazardous working conditions, you can still apply for unemployment.)

Workplace discrimination

If you ask most people, they’ll probably tell you that discrimination doesn’t really exist anymore because of the legal protections in place. Unfortunately, that’s not actually true. Discrimination is a little harder to prove, but it does still exist in various forms.

The US has a number of laws against workplace discrimination:

Other forms of discrimination may be based on religion or sexual orientation, harassment, (sexual and non-sexual), and retaliation. Individuals in these groups are known as “protected classes,” and may be the focus of discrimination.

It may be unfair — but is it discrimination?

Discrimination can manifest in two ways:

  • Direct—being treated less favorably than the person next to you
  • Indirect—imposing a condition that you are unable to comply with

For instance: early retirement may be offered to employees who have been with the company for many years and eligible for retirement. But in many cases, mandatory retirement may amount to age discrimination.

Another instance is a company adding a requirement to a job function knowing that some individuals could not meet the requirement.

Determining discrimination

Here are some questions to consider whether you are being discriminated against:

  • Are you, or others like you, being singled out?
  • Are you a member of a protected class, but experiencing unfair treatment or termination/layoffs? (I.e., workers over 50 being laid off and replaced by much younger employees.)
  • Are others in a protected class (LGBT, Latino women) being singled out as well?
  • Is there a pattern of bias or discrimination against a particular class, such as minorities or women, consistently being passed over for promotions or job transfers?
  • Are complaints of harassment or other adverse working conditions being ignored?
  • Has your workload or work scheduled changed, but no one else’s has?
  • Have you or others recently reported wrongdoing, but are now being retaliated against? (Fewer work hours, demotion, pay cut, etc.)
  • Have you consistently done a good job, but are now receiving disciplinary notices?

These are just some of the ways you may be able to determine if there is discrimination and not a complete list of questions to ask.

Document all evidence

Most employers will deny any and all accusations of discrimination, even if it’s blatantly obvious. You’ll need some tools in your arsenal to fight back.

If you believe you’re being targeted for discrimination, your best defense is to document as much as you can. Direct evidence is best, but you may only have evidence that is circumstantial.

  • Performance reviews — you probably won’t be told outright that you are being terminated for an illegal reason. Instead, the official reason may be poor performance, company policy violations, or something similar. If your company does regular performance reviews (some do yearly, some do quarterly, etc.) get and keep copies where they will always be available. Paper copies kept at home are good, but an electronic copy in your Drive, Dropbox or other cloud storage as a backup is even better.
  • Your job description — do you have a copy? Get one, and keep it on file, both paper and electronic, along with your performance reviews. Should your company suddenly terminate you for “performance issues,” you’ll be able to show what you were doing, how it was satisfactory if you were passed over for promotion or terminated in favor of someone less qualified.
    • Employment contract — if your company uses them, get a copy if you don’t have one. As your HR department.
  • Keep any relevant communications — save memos, texts, emails, phone messages, or anything else that can show bias may be used against you.
  • Timing of termination, demotion or other adverse event — if you informed your employer of your medical condition, (i.e., pregnancy) and were abruptly terminated shortly thereafter, this may prove discrimination.
    • Medical records — if you have a disability and/or medical condition, these can be added into evidence to back up your claim that you may have been illegally terminated for medical reasons.
    • Medical treatment — if you’ve sought out mental health assistance as a result of harassment or other adverse work conditions, your attorney will also need to be informed. You’ll be asked to provide contact information of doctors, counselors, etc.
  • Termination documents — should your employer give you a suspicious reason for termination (i.e., chronic tardiness), request express written proof of their claim. If you had not committed this violation of company policy, you will have evidence that shows it was not the actual reason for your termination. Get copies of any documentation related to your termination.
  • Testimonies — both your own personal testimony and that of witnesses can be very strong corroborating evidence to prove your case. This helps avoid the “he said, she said” type of case.

Whatever you have to give to your attorney will go a long way in helping him or her defend you in a discrimination complaint.

Workplace discrimination is against the law

There are strict laws in the U.S. against discrimination. If you believe you’ve been the target of workplace discrimination, call the Civil Rights Litigation Group in Denver at (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.

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Civil Rights Litigation Group

1543 Champa St., Suite #400

Denver, CO 80202

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