Being injured on the job or developing a work-related illness is bad enough. No employee should also have to suffer from employer retaliation just because they filed a workers’ compensation claim. However, it is not uncommon for employees who have exercised their rights under the Colorado Workers’ Compensation Act (Colo. Rev. Stat. Ann. § 8-40 et seq.) to be victims of workplace retaliation. For example, an employer may attempt to fire an employee who has filed a claim for workers’ compensation. In Colorado, this is an illegal employment practice, and an experienced employment attorney may be able to help you.
Retaliation for a Workers’ Compensation Claim – Colorado Law
Federal and state laws such as Colorado’s Anti-Discrimination Act and Title VII of the Civil Rights Act of 1964 protect employees from retaliation if they have been a victim of discrimination because of their race, color, religion, sex, or national origin. However, these laws generally do not prevent retaliation against an employee who has filed a workers’ compensation claim.
Instead, retaliation for filing a workers’ compensation claim is illegal in Colorado under the common law. Unlike statutes, which are written by the legislature, the common law is created by the courts. Courts in Colorado recognize the common law tort retaliatory discharge, sometimes called “wrongful termination” or “discharge in violation of public policy.” This law exists to help employees who are fired for having filed a workers’ compensation claim.
Elements of a Wrongful Termination Lawsuit
In order to successfully bring a wrongful termination lawsuit, an employee must be able to prove three elements. Herrera v. San Luis central Railroad Co., 997 P.2d 1238 (Colo.App. 1999). These elements are:
- The employee bringing the lawsuit, the plaintiff, was employed by the defendant employer;
- The defendant discharged the plaintiff;
- The plaintiff was discharged for exercising a job-related right or privilege to which he or she was entitled.
In Colorado, employees who are injured in the workplace or who develop a work-related illness have the right to file a workers’ compensation claim. It is illegal for an employer to fire an employee for exercising this right. However, in most cases, this third element is the most difficult element to prove. Employers will often argue that they did not fire an employee because of a workers’ compensation claim, but because they had some other cause.
Americans with Disabilities Act
The Americans with Disabilities Act (ADA,42 U.S.C. 12101 et seq.) makes it illegal for an employer to discriminate against an employee who is disabled. The ADA defines a disability or disabled person as a:
- Physical or mental impairment that substantially limits one or more major life activities of a person;
- A person who has a record of such an impairment; or
- A person is regarded as having such an impairment.
In many instances, an injury or work-related illness may qualify as a disability under the ADA. In these situations, a worker who is retaliated against may have the option to bring a wrongful termination lawsuit or a claim of discrimination under the ADA. The Equal Employment Opportunity Commission has published guidelines on the interaction between state workers’ compensation laws and the ADA.
Contact an Experienced Retaliation Attorney
If you believe you have been retaliated against because you filed a workers’ compensation claim, it is important to contact an experienced lawyer as soon as possible. This area of law is a particularly complex one, and an employment attorney can advise you about whether you may be able to file a wrongful termination lawsuit or a claim for discrimination. At HKM Employment Attorneys LLP, we have experience helping victims of retaliation get the help they need, such as job reinstatement, back pay, emotional damages, and – in some cases – punitive damages.
If you are a victim of workplace retaliation, do not wait – contact HKM Employment Attorneys LLP online or call us at 303-991-3075 for a private consultation.
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