Retaliation for Union Activity

Although union activity is not as prevalent in Colorado as it is in many other states, it is still important for workers to understand the protections that the law offers for retaliation. In Colorado, it is illegal for an employer to fire an employee solely because that employee has engaged in union-related activity. An employee that has been retaliated against may be able to file a claim with the National Labor Relations Board (NLRB) or bring a wrongful termination lawsuit.

Colorado is an Employment-at-Will State

Most Colorado workers know that Colorado is an at-will employment state. In general, this means that an employment relationship may be terminated at any time for any reason by either the employer or employee. However, there are several important exceptions to the employment-at-will doctrine:

• Federal statutes – federal statutes, such as the National Labor Relations Act, can place limitations on an employer’s ability to terminate an employee.
• State statutes – Colorado has several state statutes that protect employee rights.
• State common law – Through their decisions, courts in Colorado have granted employees additional protections.

Filing a Claim Under the National Labor Relations Act

The National Labor Relations Act (NLRA,29 U.S.C. 151-169) protects employees who engage in “concerted activities,” including union activities. The NLRA makes it illegal for an employer to retaliate against an employee. Section 8(a)(4) of the NLRA explicitly prohibits employers from firing or discriminating against an employee who has filed a complaint or participated in proceedings under the NLRA. More generally, Section 8(a)(3) makes it illegal for an employer to discriminate against employees who are members of a labor organization, such as a union. Under this Section, employees may not be retaliated against for:

• Joining a union;
• Becoming a union leader;
• Participating in union meetings;
• Attempting to negotiate conditions of employment; or
• Picketing, so long as the picketing is conducted lawfully within the scope of the NLRA.

Employees who are retaliated against for the above actions may file a claim with the NLRA and receive damages such as back pay and reinstatement.

It is important to know that the NLRA does not apply to all employers in Colorado. Whether the NLRA applies depends on the type of employer and their annual gross sales. These limitations are called jurisdictional standards.

Filing a Wrongful Termination Lawsuit

Even if the NLRA’s protections do not extend to your employer, you may be able to file a wrongful termination lawsuit, also called a lawsuit for discharge of in violation of public policy. This is a cause of action that exists under Colorado common law. In Colorado, there are three general elements that are required:

1. The employee bringing the lawsuit, the plaintiff, was employed by the defendant employer;
2. The defendant discharged the plaintiff;
3. The plaintiff was discharged for exercising a job-related right or privilege to which he or she was entitled, or the discharge would undermine a clearly expressed public policy.

Whether the employee is able to bring a wrongful termination lawsuit will depend on the specific union-related activity that the employee was involved in. For many activities related to bargaining with the employer, protesting unlawful workplace conditions, or exercising statutory or constitutional rights, employees will have this common law protection.

Contact an Experienced Retaliation Attorney

If you have been involved in union activity or other concerted activities and believe that your employer has retaliated against you, it is important to consult with an experienced attorney. This area of law is particularly complex because it involves state and federal statutes, as well as the common law. At HKM Employment Attorneys LLP, we have experience helping victims of retaliation bring retaliation claims and lawsuits.

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.