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Can an employee be fired for no reason in Colorado? Part 1

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Colorado employees often find themselves fired, terminated, let go, laid off, etc. for reasons that may not have anything to do with violating workplace rules or poor job performance. An employee in that position reasonably questions whether the reason he or she was fired was wrongful or violated their Colorado employee rights.

Under Colorado employment law employees who work under at-will employment can be fired for no reason at all.

Employers can terminate employees without a job-related reason or on the basis of bad information or even a bad reason. The employer’s power to fire employees is not unlimited, however. There are many reasons under federal and Colorado employment law why an employer may not fire an employee even in an at-will employment relationship. If you believe you may have been fired for an unlawful reason then you may have a claim for wrongful termination and you should talk to Denver employment lawyers right away about your potential claims.

This post will be a series of posts regarding wrongful termination in Colorado. 

What does it mean for an employer to fire for no reason in Colorado?

In most cases employers do not randomly terminate employees without a particular reason. It is expensive to find, hire and train employees. Every employee fired is a lost investment of those resources so employers typically do not casually fire employees. That does not mean every employer termination decision is rational or based on a thorough investigation.

Colorado employers can fire you for no reason even if it is not a financially smart decision. Employers sometimes fire workers for extremely stupid reasons or for good reasons but on the basis of bad information or insufficient investigation. Unfortunately federal and Colorado employment law allow employers to make decisions to fire employees without any minimum explanation, reason, or investigation.

The basis for an employer’s power to fire you for no reason in Colorado comes from the at-will employment relationship. Let’s talk about what that means under federal and Colorado employment law.

What is at-will employment under federal and Colorado employment law?

In this country employment relationships in all states but Montana are by default at-will employment. At-will employment means the employment relationship exists at the will of both parties. In other words, the employment relationship lasts as long as both the employer and employee agree to continue it. Either party can terminate the relationship without consequence or permission of the other party. Over time federal and Colorado labor and employment law created exceptions to the at-will employment doctrine discussed below but the default assumption is that unless an exception exists or the parties have created a different relationship then the employment relationship is at-will.

Federal and Colorado law creates at-will employment under the legal fiction that employer and employee have equal bargaining power when creating an employment relationship. Anybody who has ever worked a job knows that is pure fiction. Employees need their jobs to pay bills and live while employers can easily fire an employee and either hire somebody new or assign the terminated employee’s work to other employees. Nevertheless, the at-will employment doctrine allows employers to fire for no reason any employee who works under this type of relationship.

Employment relationships that are not at-will employment in Colorado

An employee does not have to work under the at-will employment doctrine. Contractual employment and bargained employment agreements are not at-will employment because they create employment relationships that cannot be terminated on the whim of either party.

Employees may work under contracts that create many different conditions that regulate how an employer or employee can terminate the relationship. These can be term contracts, such as employment for one year, or contracts without a specific length. Employment contracts often include provisions describing what reasons an employer can terminate the relationship or set standards for job performance that an employee must fail to meet to be fired. Under these contracts an employee cannot be fired for no reason.

Employees can also work under collective bargaining agreements. These agreements typically exist in union workplaces in which the employees work under one agreement that covers the employment of many workers.

Collective bargaining agreements can lay out specific procedures to fire an employee and reasons why an employee can be fired. CBAs are not just creations of contract law. They are also creatures of federal and Colorado labor law which create additional protections around union participation and require employers to follow procedures that inject some degree of fairness into termination decisions.

What is wrongful termination in Colorado–Colorado labor laws and termination

Exceptions to the at-will employment doctrine exist in federal and Colorado labor and employment law as statutory and common law creations. That means either a statute passed by the federal or state legislature explicitly prohibit certain reasons why an employee can be fired or courts created specific reasons why the constitution or other laws do not allow an employer to fire you. There are many exceptions under federal and Colorado law–too many to list out entirely here–but some common ones include:

These and other exceptions to the at-will employment doctrine commonly include extremely precise rules to apply so if you believe your employer fired you for an unlawful reason then you should contact Denver employment lawyers right away to discuss your situation and see if you have a claim.

Wrongful termination in Colorado can also arise if you work under a contract or collective bargaining agreement and the employer terminates you in violation of the terms of the contract. These claims are different from wrongful termination when an employee is fired in violation of a statute or common law exception to at-will employment because they are contractual claims. You should also contact a Denver employment lawyer to discuss a claim for wrongful termination for violating a contract or CBA.

If an employer fires you for no reason or for a reason not prohibited by law or contract then your employer likely acted legally and you may not have a claim for wrongful termination in Colorado. You may still have a claim for unemployment benefits and can file for unemployment even if you do not have other legal recourse.

In the next post on wrongful termination in Colorado we will delve further into some of the common unlawful acts that make up a wrongful termination lawsuit in Colorado. 

Predictions for a post-quarantine workplace in Colorado

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Denver labor law elected not to report on the employment law changes that took place during the quarantine for several reason. While there is good reporting on the federal relief legislation like the CARES Act or FMLA amendments for COVID-19, the risk that generalized legal discussion on this blog might lead people to make decisions about their specific situation that might be extremely harmful to their jobs. Now that it appears Colorado will follow national recommendations to ease out of quarantine we have to wonder what kind of workplace there will be for workers as they return to work.

We know that an overwhelming number of workers were laid off as shelter in place set in with even less known about how many will have their jobs restored as people return to work. With the federal enhancement to unemployment benefits beginning to be paid at the end of May (backdated to March 27) it is likely those who temporarily gave up applying for unemployment benefits will make renewed efforts so the total number of unemployed workers may not be known for some time.

Nevertheless, here are some predictions for what workers may experience returning to the workplace.

We don’t know how long it will take for the vast majority of jobs to return in Colorado

Practically we know that unwinding quarantine will take longer than instituting the COVID-19 quarantine. One obvious reason is that the Colorado orders unwinding quarantine are not opening all industries for work right away or letting offices fully restaff right away. That is going to slow workers getting back to work and slow the return of economic activity justifying full employment. We don’t know at this point how many businesses might not return after quarantine ends or how competition among the stronger survivors might beat up those in more precarious positions.

We also do not know if reversing quarantine will be a permanent path forward. If COVID-19 cases start increasing we likely will see a return to at least a more stringent quarantine. Colorado, along with other states, may enact waves of quarantine to try to flatten the curve.

The extent and permanence of the return to normal economic activity will definitely play a role in jobs returning. Industries that rely upon large social gatherings likely will be especially hard hit for some time which will have ripple effects on other industries. Jobs within these industries and those secondary to social businesses may not fully recover staffing for months or even years after quarantine fully ends.

A secondary concern is that after the initial quarantine the increase in contact and proximity may incite another spike in infections which will force another quarantine order. That may be disastrous for businesses dealing in perishable products as they place orders for supplies and then have to dispose of them in a subsequent shelter in place order. Employers could find themselves cutting workers to account for those business losses.

More remote work will occur in the future

Businesses remain divided on the subject of remote work in general but the shelter in place order forced many businesses to expand their remote staffing which may encourage more employers to adopt broader remote staffing policies. As employers see productivity remain fairly consistent with long term work from home it will be tempting to transfer more Colorado employees to remote work and give up the expense of maintaining offices.

While working from home is widely popular it also comes with the risk that employers will go a step further and consider moving their workforce out of employee relationships into independent contractor positions. Along with this move workers will see benefits disappear along with opportunities for promotions.

Further issues arise in urban parts of Colorado like Denver, Fort Collins, Boulder and Colorado Springs in which businesses leave downtown offices and business parks as they downsize office space and in turn reduce the consumers of nearby businesses such as restaurants, gas stations and convenience stores.

Denver workplace harassment lawyer

Employers will likely respond to the return to work with pay and benefit reductions

WIth the economy still far behind its pre-quarantine state many businesses are already cutting benefits and salary as they rush employees back into the office. After the collapse in 2008 many employers in Colorado and other states moved benefits and bonuses to discretionary benefits so employers could cut employee compensation in economic downturns. We are already seeing employers cutting 401k matches and other now-discretionary benefits. We are also seeing salary cuts across the nation, especially with non-executive compensation.

Much like the 2008 collapse, employees will likely see at least some of these reductions and discretionary benefit cuts become permanent as employers look to further cut labor costs regardless of productivity.

Employees suffer the greatest harm in economic downturns rather than the executives who receive enormous compensation packages for their leadership. Executive compensation is typically one of the last business costs to suffer cuts in a downturn despite the fact that their leadership failed to plan appropriately or foresee economic downturns. This is particularly appalling in the current economy.

For years businesses have been hoarding cash over increasing employee compensation. The argument for the 2017 tax cuts was that employers would increase worker pay but instead they took all that money and used it for stock buybacks which increase shareholder compensation and in turn often executive compensation but left the coffers empty to weather this storm.

High unemployment numbers will put pressure on workers to accept less pay and worse work conditions

Unemployment numbers reflect that twenty percent of the workforce was rendered unemployed by the quarantine–an enormous number. That does not even account for the people who suffered reductions in hours or people who left the workforce entirely. High unemployment increases the supply of available workers for any job opening and employers take advantage of the increased supply by reducing the compensation for jobs. As a result employers enjoy long term reductions in labor costs.

Employers also know people are less likely to leave their current positions because it is more difficult to obtain new work and the available jobs are less likely to pay better. That allows employers to cut compensation, increase work demands and generally treat employees worse. Like other harms suffered by employees following an economic downturn, employees are likely to see many of these changes become long term.

Sexual harassment will rise considerably

Sexual harassment claims are likely to increase over the next year for several reasons. As discussed above, employees are likely to suffer less pleasant workplaces and employers will feel emboldened to take advantage of employees knowing they are unlikely to leave and therefore suffer in silence. Managers will take advantage of that environment to engage in quid pro quo harassment and other forms of sex discrimination.

Further, quarantine has understandably been a difficult period of loneliness for a lot of people and inevitably some people are going to take the return to work as an opportunity to try to remedy that loneliness in some inappropriate ways. Quarantine has also seen concerning increases in domestic abuse and relationship stress that will likely lead to the end of a significant number of relationships. Those people may reenter singledom in inappropriate ways as well.

Retaliation complaints will skyrocket

With all of the problems discussed above employees will likely complain about these unwelcome situations only to suffer additional negative consequences which in turn will prompt more internal and external retaliation complaints. Most labor and employment laws in Colorado and under federal law have separate provisions allowing employees to recover for harm suffered as a result of complaining about unlawful activity.

Colorado employers will seek relief from labor and employment lawsuits as COVID-19 stress

Employers are already gearing up to argue a defense of unlawful labor and employment practices that COVID-19 and the quarantine effects resulted in strange times and employers should enjoy slack in following the law. This defense is likely to roll out across federal and Colorado courts in labor and employment lawsuits. There is reasonable probability that at least some states will pass laws giving employers statutory relief from labor and employment laws.

Waves of layoffs will likely continue for a year or more as seasonal businesses feel the effects

Even with a general return to work many industries will likely continue to suffer waves of layoffs. Productivity reductions will likely continue for an extended period of time as people remain out of work and people avoid large gatherings. This will be a particular problem for industries that rely entirely upon people gathering together or spending discretionary income. Tourism, concerts, conventions, gambling, skiing and other industries will likely feel the effects of this economic downturn long after people return to work.

What Colorado workers should do now

This is a tough time for a lot of workers and unfortunately it is unlikely to get better any time soon. Workers should aggressively document problems in the workplace and defend themselves as well as they can from unlawful activities. If you believe an employer or potential employer violated your labor and employment rights then you should talk to a Colorado employment lawyer right away. You may need to act within a short period of time to preserve your claims. You may also want to talk to an employment lawyer about the consequences of taking legal action against an employer versus your other options to avoid an unlawful situation.

Can your resignation letter defeat your Colorado employment lawsuit?

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It is common in many Colorado jobs for employees to submit a resignation letter when leaving a job–but what happens when you submit a resignation letter and then sue the employer? Many workers may be surprised to find out their resignation letter may cause problems for a lawsuit against an employer for wrongful termination, employment discrimination, unpaid wages, or other labor and employment law claims.

A resignation letter could also create problems for unemployment claims. Colorado workers should exercise caution when drafting a resignation letter to avoid complicating their lawsuits or unemployment claims. If you believe you may need to leave a job and sue your employer then you should talk to a Colorado employment lawyer before giving your employer any resignation letter to avoid these problems.

What is a resignation letter and why employees submit resignation letters

Resignation letters are at a minimum written notice to an employer of your intent to end the employment relationship. Often Colorado employers request two week notice of your intent to leave your job and for you to give notice in writing. Employers often promise to leave your status as eligible for rehire if you give this resignation letter. In some professions and some positions it is expected that you will include within a resignation letter niceties about the company and your colleagues. Other workers write these types of resignation letters because they think they should.

Generally, there is no duty for employees to notify an employer in Denver or other parts of Colorado of your intent to end the employment relationship. An employment contract may require notice or an employer might give you some specific benefit for writing notice; however, Colorado labor and employment law does not require you to do so. To the extent that you may have a duty to give notice or want to receive a promised benefit of giving notice, you certainly do not have a legal obligation to make your employer feel good on the way out the door.

How a resignation letter can cause problems for your federal or Colorado employment lawsuit

Let’s say you decide one day work conditions are so terrible you have no choice but to quit and then you sue the Colorado employer for wrongful termination or employment discrimination. Your lawsuit might seek relief under federal and Colorado employment law. You decide to give your employer a resignation letter that politely gives notice of your last day and thanks the employer for the opportunity and some other pleasantries. Let’s say it says you are leaving to pursue other opportunities. This is a very common resignation letter. The resignation letter does not mention the problems in the workplace or discrimination.

That resignation letter is a real problem for your lawsuit.

Your resignation letter tells a very different story of your job and the conditions that led to you quitting your job from what your lawsuit alleges. Your wrongful termination claim necessarily has to allege that the work conditions were so unbearable that you had to leave which effectively acted to termination your employment.

This is called constructive discharge.

If workplace conditions were so terrible then why did you say something so different in your resignation letter? Why did you resign at a later date and continue to endure the punishing conditions? If the job was so bad then why did you not mention that at all in your resignation letter? Why did you say you were leaving to pursue other opportunities and not because the workplace harassment was too much?

Certainly, you can argue that you sent the letter to be polite or because you did not want to force yourself into an awkward confrontation on the way out the door. Maybe a jury believes that; but maybe a jury thinks if you had the ability to pause and give consideration to politeness then maybe the workplace was not quite as bad as you allege.

Another issue the employer’s attorneys will undoubtedly raise is that you were blatantly dishonest in the resignation letter–or dishonest in filing your lawsuit. They cannot both be true. At best you have an uphill battle for your credibility. At worst you may lose your lawsuit at summary judgment before even reaching a jury.

Employers will use your resignation letter against you

Increasingly employers find new ways to use resignation letters against former employees. In the prior section we discussed how employers use them to defeat wrongful termination and other lawsuits.

For example, employers use them to enforce noncompete agreements and provisions allowing them to clawback hiring bonuses and other compensation.

You may also file for unemployment benefits on the basis that the workplace was untolerable and employers will use your resignation letter as proof you said something different from the allegations in your unemployment claim. Employers in Colorado will use any evidence that their disposal to their benefit. Giving an employer a resignation letter just adds to the available evidence they can use against you.

What should I put in a resignation letter?

If you are leaving a job on unpleasant terms then you should talk to a Denver employment lawyer if possible before leaving to get specific advice on how to quit your job. Generally if you are leaving a job for unpleasant reasons then you should give written notice of your departure but leave out any commentary about your job or the employer.

Simply write, “Please accept this as notice my last day of work will be X.” You may add your current contact information so the employer can send you a final W-2 or necessary documents. Generally your employer is not owed anything more. You do not need to thank them for the opportunity to work or hope to work with anybody in the future.

When facing poor work conditions or problems on the job you should talk to Colorado employment lawyers immediately about your job. Labor and employment law are complex areas of law and legal answers can turn on minute details and complicated legal analysis. Experienced employment lawyers can discuss your situation and give you an answer specific to your situation.