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Hostile Work Place Environment

Colorado Employment Law – Frequently Asked Questions

What is a hostile work environment?
Legally, this constitutes hostility in the workplace against one’s race, religion, gender, national origin, or other protected aspect. If bad enough, it can support a constructive discharge.
What is a constructive discharge?
An actual discharge is when you are fired. A constructive discharge is when the employer makes conditions so intolerable that you have no choice but to quit. It is legally the same as being fired, but difficult to prove.
What is unlawful discrimination?
There are many types of discrimination in the workplace, most of which are not unlawful. Unlawful discrimination is generally discrimination against something protected by a statute (race, religion, gender, etc.) or discrimination against you because you are a whistleblower.
What is whistleblowing?
If your job is to report infractions to your employer, this is probably not whistleblowing. Whistleblowing generally requires the employee to report unlawful conduct to someone outside of the company.
Is Colorado a right to work state?
Yes. This is otherwise known at-will employment. An employer may terminate an employee for any reason unless it is for unlawful discrimination, for whistleblowing, or in retaliation for exercising a protected right.
What is such a “protected right”?
This is generally a right protected by a federal or state statute or by a code. For instance, if you are injured, you have a right to file a workers’ compensation claim and your employer may not retaliate against you for filing such a claim. If you are a CPA, you are required to make certain financial disclosures and it is unlawful for your employer to retaliate against you for doing this. However, many such rights mentioned in a statute are too vague to be enforced.
What is a wrongful discharge?
Unfortunately, an employer has the right to terminate you, even if this is an unwise business decision. It is only a wrongful discharge if it is unlawful under one of the above theories.
What rights do I have upon termination?
Even if you were not unlawfully terminated, you have a right to all of the compensation owed you. This includes unpaid wages, vacation pay (in some instances), and commissions (if earned before your termination).
What do I have to do to protect those rights?
You are always entitled to what you are owed as long as you file a claim within the applicable statute of limitations, generally two years. However, for practical purposes, it is best if you make a written demand (in a letter or in an e-mail) for what your employer owes you and give the address to which the payments may be sent. If you do this within 60 days after the amount is a owed, and your employer does not pay you, an attorney can pursue that payment on your behalf and, if you prevail, your employer has to pay your attorney’s fees. This is a big advantage to you as an employee because, absence the recovery of the attorney’s fees, an attorney may not be able to afford to prosecute your case if you are owed a small amount.
Do I have a right to unpaid commissions?
Perhaps. The answer to this will depend almost entirely upon the wording of your commission agreement. If your commissions are deemed to be owed to you on your last day of employment, you will be entitled to the commissions.
What rights do I have it if I am sick?
The Family and Medical Leave Act (FMLA) gives you the right to 12 weeks of medical leave per year, but only if you are more than a part-time employee, your employer has at least 50 employees, and you have worked for your employer for least one year.
Can a father stay at home to take care of the newborn?
Yes. The FMLA provides a father up to 12 weeks of leave to take care of a newborn.
What rights do I have if I am terminated after returning from medical leave?
Your employer may not retaliate against you for taking leave under the FMLA. However, your employer may terminate you upon a return from medical leave if your employer would have terminated you even if you did not take the leave – for example, if you return from medical leave and are terminated pursuant to a valid reduction in force.
What must I do to prove that I was the subject of discrimination?
Only in the rarest of occasions will you have direct proof of discrimination. Generally, you will have to prove discrimination indirectly. To do so, you must first prove that you were part of a protected class (a member of a racial minority, a disabled person, a person who just took FMLA leave, a pregnant person, etc.) at which point the employer bears the burden to show that the reasons given for your termination (or other adverse action, such as a demotion) were valid reasons. You then must prove that these reasons were not valid but were simply an excuse or pretext, not worthy of belief. In the end, you must convince the jury that you were discriminated against because of the discriminatory motive of your supervisor, which will always lie between his or her ears. Sometimes, this can be proved simply by showing the egregiousness of the pretext. Sometimes it may take more proof.
May I prove discrimination based on a pattern of how co-employees were treated?
Yes. However, this is often expensive because it may require retaining an expert to tabulate the statistics. For instance, if you are employed by a large company, and if you believe there is some type of glass ceiling for particular categories of employees, you may be able to show discrimination through statistical analysis.

Robert M. Liechty

Attorney at Law

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