Employment Law

Employment law encompasses a broad range of legal topics.  It is largely contract-related and involves various types of contracts, including employment contracts themselves, personnel manuals, severance packages, non-compete agreements, and non-disclosure agreements to name a few.  Numerous laws and regulations govern employment law.  For instance, employment law is controlled by federal and state wage and hour laws, federal and state anti-discrimination laws, and federal governmental agency rules and regulations, such as OSHA and MSHA. Employers regularly confront a range of issues relating to employees.  For hiring, employers must know what information to request, whether information can and should be verified, and what questions to ask and to avoid.  Where discipline and disputes arise, employers need to know how to respond to unsatisfactory performance, disruptive or threatening behavior, and disputes and employee complaints, including about pay, sexual harassment and discrimination.  The fact that Colorado is an at-will employment state can simplify certain aspects of terminating employees.  Even so, there are important rules affecting when employees may be discharged.  Employers need reliable legal counsel regarding appropriately documenting the firing of employees, when and how to conduct exit interviews, how to properly deal with pay set-offs, whether and how to give references, and how to responding to wrongful termination and unemployment compensation claims. COBRA/CCHICA The federal law known as COBRA requires employers and their health, disability and life insurance providers to make coverage available at employees' expense to eligible employees and dependents for a limited period after termination or other “qualifying event.”  COBRA presents common questions to employers and employees that require accurate legal answers. The Colorado Catastrophic Health Insurance Coverage Act is the state analog to COBRA.  It applies to any employer with a group sickness and accident insurance policy that insures at least ten employees and that is for the benefit of persons other than the employer. Such policies must include a provision allowing “every covered employee whose employment is terminated, if the policy remains in force for active employees of the employer, to elect to continue the coverage for himself and his dependents.” Compensation and Benefits Not surprisingly, compensation and benefits are central to employers and employees; they form much of the basis of employment relationships.  Accordingly, both employers and employees must know when salary vs. hourly wages are appropriate, whether particular employees are overtime “exempt” or “nonexempt,” and how to deal with the various forms of leaves and vacation. Discrimination Discrimination in employment  and employment decisions on the basis of factors like race, sex, age, religion, sexual orientation in the employment context is generally impermissible.  The ways in which discrimination may occur are numerous, so employers and must be proactive about their anti-discrimination policies, sensitive to changing employee composition, and decisive in dealing with discrimination claims when they arise.  Workplace discrimination is not always something an employer can control—particularly when the employer is unaware of such conduct.  However, an employer’s failure to properly address discrimination complaints can result in liability under federal and state law on the part of the employer. Title VII of the Civil Rights Act of 1964 (Title VII)  prohibits intentional discrimination based upon employee's protected class characteristics, but it does not make unexplained differences in treatment per se illegal, nor does it make inconsistent or irrational employment practices illegal.  A defendant does not have to prove why differential treatment occurred; it is up to plaintiff to prove why it occurred, and to prove that it was caused by intentional discrimination against a protected class.  If a plaintiff suing under Title VII establishes a prima facie case, and the employer fails to explain its actions and the disparate treatment, judgment may properly enter for the plaintiff on a determination that the employer's discrimination should be inferred. Once a defendant in an employment discrimination case has set forth a facially nondiscriminatory reason for termination, the plaintiff assumes the normal burden of proving his or her case at trial; the presumption in the plaintiff's favor that arose from establishment of a prima facie case drops from case.  A plaintiff in employment discrimination action can prevail either directly by proving that the employer acted with discriminatory motive or indirectly by showing that stated reason for discharge was pretext for a sort of discrimination prohibited by Title VII, that is, that a facially nondiscriminatory reason was a cover-up for an impermissible, discriminatory decision.  As you might imagine, discrimination cases are highly fact-specific.  Your attorney must skillfully present the facts of the case and apply the law to them so as to provide you with the best chance of success. Age Discrimination The Age Discrimination in Employment Act of 1967 (ADEA) covers most employers with 20 or more employees and makes mandatory retirement at a specific age illegal for most employees by prohibiting discrimination based on age with respect to hiring, firing, and terms and conditions of employment.  Additionally, no seniority system or benefit plan may compel retirement. There are exceptions to the ADEA age discrimination prohibition, however.  These apply to, in certain circumstances, executives, government policymakers, exclusions required by other federal laws, and public safety officers. The Colorado Anti–Discrimination Act (CADA) generally parallels the ADEA's age discrimination prohibition. A significant difference between the CADA and the ADEA and other federal employment discrimination laws is that the CADA's prohibition against age discrimination and the other characteristics it protects apply to virtually all employers with Colorado employees. Unemployment Insurance The Colorado Employment Security Act governs whether a former employee may collect unemployment benefits.  That law provides that “[i]n the granting of benefit awards, it is the intent of the general assembly that the division at all times be guided by the principle that unemployment insurance is for the benefit of persons unemployed through no fault of their own; and that each eligible individual who is unemployed through no fault of his own shall be entitled to receive a full award of benefits; and that every person has the right to leave any job for any reason, but that the circumstances of his separation shall be considered in determining the amount of benefits he may receive, and that certain acts of individuals are the direct and proximate cause of their unemployment, and such acts may result in such individuals receiving a disqualification.”  C.R.S. § 8-73-108. When an employer challenges a former employee’s unemployment benefits claim, the initial question is whether the separation from employment was voluntary on the part of the employee.  If so, the claim fails.  If not, the next question is whether the separation was through no fault of her own.  If not, the claim fails.  The primary means by which an employer can protect against unemployment claims is to thoroughly document the bases on which termination occurred.  Such documentation should be made at the time of each infraction, rather than at the time of termination.  Certainly there is much more to be said about this and similar topics.  Bergford Law Group, LLC will guide you when it comes to employment-related litigation.