_For a period of over 9 years Mr. Levin represented the City of Baltimore, Maryland, in employment related litigation in state and federal court. Mr. Levin successfully defended the City in numerous cases involving allegations of illegal discrimination in the workplace on the basis of race or sex. Since moving to Colorado and opening his own practice, Mr. Levin has successfully represented employees complaining of sexual harassment; wrongful termination and breach of employment contract.
Employment Law FAQs
What is the definition of "at- will" employment?
If an employee is hired for an indefinite period of time and there is no agreement limiting the employer's right to discharge the employee, there is an "at-will" employment. An at-will employment may be terminated at any time by either the employer or the employee without notice or cause, but there are important protections even at-will employees have against termination in certain circumstances .
What protection against termination does a public-sector at-will employee have on the basis of engaging in free speech?
Public employees do not surrender all their First Amendment rights by reason of their employment. Rather, the First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern. The First Amendment limits a public employer's ability to leverage the employment relationship to restrict, incidentally or intentionally, the liberties employees enjoy in their capacities as private citizens. So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively. However, the First Amendment does not prohibit managerial discipline based on an employee's expressions made pursuant to official responsibilities.
What effect does the language in an employment manual have on an employer's right to terminate an at-will employee?
Termination procedures in an employee manual may be enforceable under either implied contract or promissory estoppel theories where (1) a reasonable employee would construe the procedures as being binding on the employer; and (2) the procedures are sufficiently definite to allow a court to understand and enforce them. However, a disclaimer to an employee handbook or personnel policy is effective if the employer has clearly and conspicuously disclaimed intent to enter a contract limiting the right to discharge employees. Termination procedures set forth in an employee manual or handbook do not create an implied contract where a clear disclaimer of any contractual rights appears. Nevertheless, even a clear and conspicuous disclaimer has no legal effect where the handbook contains mandatory termination procedures or requires "just cause" for termination.
Under what circumstances can an employer have liability for "wrongful discharge" of an employee?
An at-will employee has a claim for wrongful discharge if the discharge of the employee contravenes a clear mandate of public policy. There are four elements of a public policy wrongful discharge case:
The employer directed the employee to perform an illegal act or prohibited the employee from performing a public duty or exercising an important job-related right or privilege;
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 rights or privileges as a worker;
The employee was terminated as a result of refusing to perform the act directed by the employer; and
The employer was aware, or reasonably should have been aware, that the employee's refusal to comply with the order was based on the employee's reasonable belief that the action ordered by the employer was illegal, contrary to clearly expressed statutory policy relating to the employee's duty as a citizen, or violative of the employee's legal rights or privileges as a worker.
Can an employer fire an employee for off-duty conduct?
The Colorado Legislature has enacted a broad law providing that it shall be a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee's engaging in any lawful activity off the premises of the employer during nonworking hours unless such a restriction relates to a bona fide occupational requirement or is reasonably and rationally related to the employment activities and responsibilities of a particular employee; or is necessary to avoid a conflict of interest with any responsibilities to the employer or the appearance of such a conflict of interest.
__The Law Office of Burton H. Levin
34215 U.S. Hwy. 6, Suite 205
P.O. Box 782
Edwards, Colorado 81632 Phone: 970-926-3695 Fax: 970-926-3845
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