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Filing a Whistleblower or Retaliation Claim - Colorado

1. What legal protection does Colorado provide private sector employees in regard to whistleblowing and retaliation?

The general rule is that most employees may be fired at any time for any reason or for no reason at all under what is known as the at-will employment doctrine. However, in the past half-century, many exceptions to the general rule have emerged. Exceptions to this general rule can come from two sources: (1) courts, which modify and make "common law protections" or (2) the legislature, which enacts "statutory protections." Statutory protections tend to be specific, addressing certain subject areas (such as discrimination, workers' compensation, etc.). Yet, legislators often lack the foresight to address every possible situation of retaliation. Common law protections, on the other hand, tend to "fill the gaps" where no statute exists for a given situation.

Common Law Protections
Colorado recognizes a public policy exception to the at-will employment doctrine. An employer may not discharge an employee for reasons that are contrary to the public policy of Colorado. An employee has a cause of action in other words, the employee may sue for wrongful discharge when the motivation for the discharge violates public policy.

To determine what constitutes public policy, Colorado courts will look to statutes, regulations, constitutional provisions, and even professional codes of ethics to determine if a given practice has been endorsed (e.g. the right to collect workers' compensation benefits) or prohibited (e.g. criminal laws prohibiting perjury). So, for example, because a Colorado statute endorses an employee's right to collect workers' compensation benefits, an employer who retaliates against an employee for invoking that right would be contravening public policy. On the other side of the same coin, because criminal statutes prohibit perjury, an employer who coerces an employee to commit perjury by threats of reprisal is also contravening Colorado's public policy. In both situations, employees are protected from retaliatory discharge. The public policy exception extends to some whistleblowing activities.

Statutory Protections
In addition, the Colorado General Assembly has adopted narrow statutory protections for certain activities. Employees who engage in protected activities under Colorado's wage and minimum wage laws are protected from retaliation.

Other Protections
In addition to the above state protections, federal law provides workers with additional protections. Furthermore, a private contract or collective bargaining agreement may also protect employees from certain forms of retaliation.

2. What activities does state law protect, and to whom does this protection apply?

Common Law Protections
An employee may not be discharged in a manner that violates public policy. Specifically, Colorado courts have protected the following activities:

  • Refusing to perform an illegal act
  • Performing a public duty
  • Exercising an important job-related right or privilege (e.g. filing a workers' compensation claim)

Under the common law public policy exception, Colorado protects employees who perform a public duty or exercise an important job-related right or privilege. So, for example, an employer may not retaliate against an employee for exercising her right to receive workers' compensation benefits. This form of retaliation violates the public policy of Colorado, as the public policy requiring payment would be frustrated if employers could discharge injured workers for filing a workers' compensation claim.

Also under the public policy exception, Colorado protects employees who refuse to perform an illegal act as part of their work-related duties. The Colorado Supreme Court has stated that an employee should not be faced with a choice between obeying an employer's order to violate the law or losing her job.

Statutory Protections
Public Employees: The Employee Protection Act protects public employees who report waste or fraud. However the employee must make reasonable efforts to inform their supervisor or appointing authority of the fraud before reporting it. Also, the employee must file their retaliation claim within 10 days of retaliatory action. Colo. Rev. Stat. § 24-50.5-101.

Minimum Wage: An employee may not be discharged (or discriminated against) in retaliation for serving on a wage board or testifying in an investigation or proceeding to enforce Colorado's minimum wage laws. An employer who violates this provision is guilty of a misdemeanor and may be fined between $200 and $1,000 per violation. Colo. Rev. Stat. § 8-6-115.

Wages: An employee may not be discharged (or discriminated against) in retaliation for filing a complaint, instituting a proceeding, or testifying in a proceeding under Colorado's wage laws. An employer who violates this provision is guilty of a misdemeanor and may be fined up to $500 and imprisoned up to 60 days. Colo. Rev. Stat. § 8-4-120.

3. How do I file a whistleblower or retaliation claim in Colorado?

Generally: An employee may file a wrongful discharge lawsuit in an appropriate court. The lawsuit must be filed within 2 years of the retaliatory action, unless otherwise specified by statute. If you believe you have a claim, you should contact a lawyer immediately.

To state a claim for wrongful discharge in violation of public policy, the employee must show four things:

  1. the employer directed the employee to perform an illegal act as part of the employee's work-related duties or prohibited the employee from performing a public duty or exercising an important job-related right or privilege;
  2. the action directed by the employer would violate a specific statute relating to the public health, safety, or welfare, or would undermine a clearly expressed public policy relating to the employee's basic responsibility as a citizen or the employee's right or privilege as a worker;
  3. the employee was terminated as a result of refusing to perform the act directed by the employer or for exercising the privilege to which the employee was entitled; and
  4. the employer was aware or reasonably should have been aware that the employee's refusal to comply with the order or directive was based on the employee's reasonable belief that the action ordered was illegal, contrary to clearly expressed statutory policy relating to the employee's duty as a citizen, or violative of the employee's legal right or privilege as a worker. Hoyt v. Target Stores, 981 P.2d 188, 190-91 (Colo. Ct. App. 1998).

Minimum Wage: Violations of minimum wage laws should be reported to the Colorado Department of Labor & Employment, Division of Labor. They may be reached by phone at (303) 318-8441 or by e-mail https://www.coworkforce.com/email.asp.

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