A Guide to Termination Laws in Colorado
The termination of employment in Colorado is generally governed by the doctrine of "at will" employment. This means that either an employer or an employee may terminate an employment relationship at any time, for any reason, so long as the reasons are not prohibited – such as, but not limited to, reasons that are discriminatory or retaliatory in nature. In the absence of any contract that states the terms of employment or the circumstances surrounding termination, the Court has found there is a presumption in favor of termination under the "at will" doctrine. Nonetheless, exceptions have been developed to the common law rule of "at will" employment – these include exceptions for public policy violations, implied-in-fact employment contracts and promissory estoppel, among others.
For example, in one case involving public policy, an employee was terminated shortly after she informed her manager that she assisted an individual who was being discriminated against based on their disability. The manager admitted that her termination was because she assisted the person with his claims of discrimination (rather than for the stated grounds of poor performance) . The employee filed suit against the employer for wrongful discharge and for violation of public policy. On appeal, the court held that the employee had established a prima facie case of wrongful discharge where the circumstantial evidence was sufficient to permit a factfinder to reasonably infer that the employee was discharged for reporting for jury duty, based on her facially contradictory statements to the employee about her being terminated for poor work performance.
The concept of termination notice is also governed by statute. The written notice must be given before termination to employees. Colorado law requires employers give 2 weeks’ notice of termination of employment to all employees unless the following employees worked for less than 3 consecutive months: (1) those employed as home workers, paid on a piecework basis (and whose wages are determined in relation to the amount of material produced, work done or service rendered); (2) those employed as farmworkers; (3) those employed as construction workers; and (4) those employed in the alteration, repair or maintenance of motor vehicles.
Week Notice: Is It Mandatory in Colorado?
No, Colorado does not require employers or employees to give a two-week notice or a two-week notice period.
Colorado is an at-will employment state, as we’ve discussed. That means employers can terminate employees for just about any reason. Similarly, there are no laws requiring employees to give notice to their employer when they quit.
Some employers confuse good workplace etiquette with legal requirements, but they are NOT the same. There is no such requirement anywhere in Colorado law that employees provide a minimum notice before quitting or being fired.
However, what you might find in your independent employment contract, if you are lucky enough to have one–is a contractual requirement for notice. Review your contract to see if it’s there and to ensure that you are complying with its terms.
However, if you don’t have an employment contract, but a sense of good manners keeps you from calling in sick and quitting on your first day, you are going above and beyond by providing notice. There’s nothing in the law prohibiting employees from quitting on the spot or calling in as they get on the bus to leave for a new job.
Employee and Employer Termination Rights
In addition to the general offer and acceptance analysis of the specific situation, an employer and employee have certain rights and duties when a termination is impending. The employer generally has the right to decline to allow an employee to work any remaining notice period, but it cannot coerce the employee into doing so, either by threatening for instance that the employer will make derogatory statements to third parties if the employee does not work out the notice period. Of course, if the employee fails to continue performing as required in spite of a refusal to work out notice on the part of the employer, then the employee may be deemed to have "repudiated" the contract giving rise to a constructive termination and may not be entitled to pay for the notice period. Indeed, where an employee quits in the face of a termination by the employer, he cannot sue for wrongful termination but is limited to his damages as though the employer voluntarily continued the contract and thus waived the employee’s breach. In such a case there is no "interference with contract rights" as there would be if an employer for instance persuaded an employee to leave instead of terminating the employee.
At the same time, the employee is required to mitigate his damages by taking some affirmative steps to obtain new employment. While it is sufficient that he make a reasonable effort to find another position, if he refuses offers of comparable employment and successive offers of employment without substantial change in circumstances, he may be denied any notice period pay. Similarly, there is no duty to mitigate damages if the offer of comparable employment is detrimental to the employee. For instance, if the new job would necessitate a geographic relocation to a much less desirable location, it is not economically feasible for the employee to accept that offer. Likewise, if the new job is not for reasonably similar pay or status, the employee will not be deemed to have failed to mitigate his damages simply by rejecting the offer.
In cases where an employer allows an employee to take a leave of absence during the notice period, these general rules will apply. However, the jury may be allowed to scrutinize the conduct of both sides and determine if any unfairness is evident.
How Do Contracts Affect Termination Notice Requirements?
Consideration of how employment contracts and/or company policies impact the 2-week notice requirement is also important in order to understand what would otherwise seem to be a strict 2-week notice requirement. Although not common, some employment contracts even provide that a terminated employee forfeit accrued vacation time if they fail to provide 2 weeks’ notice of their intention to resign, along with various other penalties for failure to give notice, such as loss of bonuses, etc.
It is unsurprising then that most employment contracts contain a boilerplate notice requirement . The following is an example:
"Employee hereby agrees to provide two (2) weeks advance written notice to Employer of termination of this Agreement. Failure to timely provide such notice shall entitle Employer to withhold any earned but unpaid wages, including but not limited to any wages that would otherwise have been earned during the notice period."
The above provision would appear to be valid and enforceable but for the issue regarding severance pay. As noted above, the Colorado Wage Claim Act has now settled the question of whether severance pay is wages. Severance pay is wages such that an employer can forfeit vacation pay, or other earnings, for a failure to provide 2-weeks’ notice of termination.
Providing a Two-Week Notice: Best Practices
While legally, there is no requirement that employees provide a two-week notice, from a professional standpoint it is certainly advisable that employees do so. It may be helpful to think of your employment in 3 distinct phases: the first phase being the initial hiring stage, the second being the employment stage and the last being the off-boarding phase. The last phase should be respected by providing your employer a two-week notice. For an employee, this two-week period allows you to tie up loose ends and transfer your duties to a successor if your responsibilities have included supervisory or managerial functions. Even if you have a more limited role, a two-week notice will allow the company to make arrangements of how your work will be handled after your departure. For instance, if your role can be absorbed by a co-worker then your notice affords the company time to temporarily transition the responsibilities while the company makes longer-term arrangements. Also, if your employer contracts with a staffing agency they can have a replacement on-site to fill the gap left by your resignation. From an employer’s perspective, be prepared for the impact of the notice on your organization. The notice period provides employers insight into how the separation could affect their bottom line. For example, a 2-week notice may give employers a window into whether they can afford to lose a higher wage employee. With a budgetary analysis, the employer can determine what additional staffing would be necessary to fill the void and what additional budgetary funds might be needed. Additionally, employers can use the two-week period to determine whether any employees who express interest in the position of the resigning employee can actually perform the job. Often there are employees that step up to the plate and accept additional job responsibilities. This can be beneficial to all involved and, in some cases, save the employer from hiring a replacement. For the employer, treat this transition period as an opportunity to assess your staff. If you have faith in other employees or existing staffing, you can use the transition period to help determine who should be moved into more responsible roles. Make sure to evaluate the strengths and weaknesses of the personnel that are staying with the company and whether the transition period affects the productivity of your remaining staff. By taking time to assess your existing staff, you may find hidden gems that were never utilized and can hopefully be relied upon to help with the transition period. For both employees and employers, the two-week notice should be viewed as a time to manage the transition so that the separation affects the workflow as little as possible.
Terminations in Colorado: Where to Get Legal Help
Employees and employers facing issues or disputes concerning employment termination, 2-week notice, or any other employment law matters may find a wide variety of information from the industrial relations sections of the Colorado Department of Labor and Employment (CDLE) website, where you will also find links to other governmental sites. If a case is already pending in the courts – in state or federal court – information is available at the Colorado judicial branch website or the U.S. courts. These government resources are valuable for individuals with straightforward legal questions concerning obtaining a job, holding down a job, dealing with a job departure, and transitioning to a new job. By comparison , the facts of each situation must be compared to case law findings in order to determine the rights and obligations of the parties. While going over cases at the library or online may help you understand the law, those cases may or may not have similar facts and may not apply to your particular situation.
If you have a more complicated problem, a lawyer versed in the legal issues can varyingly advise you in how to proceed, and will know how to apply the facts of your situation to the law in order to achieve a reasonable resolution. Individuals should consider consulting a legal professional about the potential for pursuing or defending against an action in order to explore the proper course of action according to the law.