I cringe when I see an article that starts with the words, “If you are an employee at will, you can be fired at any time for any reason.” WRONG! Employees who are “at will” still have important rights.
The “at will” doctrine which is a basis to begin discussing Colorado employment is more correctly portrayed when it takes into account the fact that employees may have contracts. So, “at will” only if an employee does not have a contract for a term of employment (duration) and does not have a contract creating a standard for discipline (such as “just cause”) or is not part of a collective bargaining agreement, or is not part of a personnel system such as the one that many Colorado state employees are under. If the employee is one whom “at will” applies, then she or he may be terminated without notice for a LEGAL reason. The emphasis is on the word legal.
Since legality is the essence of the law, the broad interpretation of employment “at will” is said to have exceptions. A few of the more common exceptions are claims for breach of contract based on the published policies of an employer. The employer’s policies may create the terms and conditions of a workers’ employment. The policies may be in the form of a personnel manual, an employee handbook, or—as is often the case these days—individual policies stored electronically on a company’s intranet system. When an employer promises certain treatment to an employee based on its policies, such as non-discrimination, non-harassment, an open-door complaint policy without retaliation, or progressive discipline, that employer may be held to those terms and conditions under certain circumstances. This is an exception to the blanket “employment at will” rule.
An extremely important exception, of course, is that an employer cannot discriminate in violation of state or federal laws. Discrimination claims, and retaliation claims for making complaints of discrimination, relate to what is known as “protected categories.” In Colorado, the protected categories are listed in the Colorado Anti-Discrimination Act. They are: race, color, national origin, ancestry, creed, religion, sex, sexual orientation (including transgender status), age (40 through 69), disability, marriage to a co-worker, and retaliation for engaging in a civil rights-protected activity. A violation of state or federal law based on this type of discrimination overrides employment at will since that doctrine cannot authorize employers to break the law.
Another exception to employment at will is when an employer terminates an employee in violation of public policy. Public policy equates to a law and the violation is usually when the employer tells an employee to break the law (for example, when an employer tells an employee to underreport business receipts for tax purposes), but the employee refuses. After the refusal, the employer retaliates by terminating the employee. The exception may also cover situations where an employee exercises their legal right, such as participating in jury duty or filing a workers’ compensation claim when the employer has discouraged or actually told an employee not to exercise her or his legal rights.
Finally, there are specific laws giving employees rights such as the protections one may have when exercising leave under the Family and Medical Leave Act, or when talking to other employees regarding wages and terms of employment, which is permitted pursuant to the National Labor Relations Act. Other situations involve employees participating in programs which give them economic benefits such as permitted leaves, or protections against violence in the workplace.
When an employee hears that they can be terminated for any reason at any time, they should know that’s just not the law. There’s more to the story.
By Robert Truhlar