Sep 1, 2009 8:25 pm US/Mountain
Attorneys See Surge In Wrongful Termination Cases
Written by Andrea Lopez
DENVER (CBS4) ―
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Attorney Bryan Kuhn talks with CBS4's Andrea Lopez.
CBS
Since the onset of the recession, many law firms that specialize in business and employment law have seen a surge in cases -- cases where people are trying to sue their former employers for wrongful termination.
Attorney Bryan Kuhn has not only seen an above-average amount of cases like that, he's seen an unprecedented number of age-discrimination cases.
Kuhn is a business and employment attorney whose office is in downtown Denver. He represents both employees and businesses, but lately has seen a surge of employees seeking his advice.
"I originally got into employment law because I saw so much demand in business law -- representing businesses and companies," said Kuhn. "I kept seeing HR issues; employment law issues coming up all of the time. I got knowledgeable in that and then started taking on the employee side. Recently, in the last year or year in a half, that has just taken off."
On Kuhn's Web site he says the most-viewed page is the one on unlawful termination. His firm is receiving anywhere from 20 to 80 calls a week regarding employment law -- most of those calls are coming from employees. Also, in the past year, Kuhn has seen more calls than ever before regarding age discrimination. A couple of his age discrimination lawsuits are ongoing in U.S. District Court.
"I'm hearing from a lot of older workers who show up (to work), they're fired, and some of the time they're being replaced by people who are so young that it's almost obvious that it's going on -- like 20-somethings," said Kuhn. "I'm seeing a lot of that."
Kuhn says there are basically four components that make up a legitimate age-discrimination lawsuit.
"There's kind of like a checklist of four things for an age discrimination case. I want to emphasize that may be changing, but for right now, the lawyers and the judges are going with this for now," he said. "One, are you in the protected class -- that is over 40? Two, are you performing satisfactorily? Three, did you experience an adverse employment action?"
Kuhn says an adverse employment action means the employee got fired. It can mean demotion, it can mean a pay cut, it can mean a number of other things, but usually someone gets fired.
Kun says the fourth element is that the employee was replaced by someone outside of the protected class -- usually younger than 40.
"This doesn't mean that if you hit all of the checkboxes that you'll win a trial. But those are the basic ingredients to get a lawsuit going, if you will."
"Outside of the realm of age discrimination, if someone believes that you've been fired for an illegal reason--such as those based on religion, marital status, gender, race, ethnic background (all of those categories are also protected it's called Title 7 of the Civil Rights Act) -- the most important thing I can say to those people is make sure you get to the EEOC (Equal Employment Opportunity Commission) or the Colorado Civil Rights Division as soon as you can," said Kuhn. "Do not sit on the claim. The statute of limitations run -- they're fast and irreversible."
Kuhn says somebody can't sue an employer for those illegal reasons unless they file a claim first with the EEOC or the Colorado Civil Rights Division. They must give what's called "a right to sue letter." He says the statute of limitations can run out quickly, so he can't stress enough that people should go to those agencies right away if they suspect they've been fired illegally. It's the way to preserve the option to go to court. Without that option, he says he can't do anything to help a client with a lawsuit.
Those who don't have any claims regarding age discrimination or any of the elements under Title 7 may not have a good case they've been fired, according to Kuhn.
Colorado is an "at will" state.
"The definition is with or without cause the employer or the employee can end the relationship at any time. The employee can quit without any liability and the employer can quit with no further liability and we're done.
Kuhn says that means that unless some other law applies or there's a contract or a union agreement, an employee can be fired at any time for any reason.
"From a practical standpoint and a managerial standpoint, many bosses will not do that. They won't fire someone in that situation. It usually creates bad morale, usually they want systemic discipline," he said. "People don't want such arbitrary decisions in the workplace. There are a lot of managerial reasons a company won't do that. But legally, in the absence of anything else, could they literally fire you without warning at the drop of a hat? Absolutely."
Kuhn says when people are let go, they often forget to ask important questions of their former employers--questions that could yield some assistance through a potentially tough time.
"Ask if you can get any money from your employer, can you get outplacement assistance; can you do temporary contract work maybe for lower pay; can you get any severance out there," said Kuhn. "You never know sometimes until you ask."
Additional Resources
Denver District EEOC Office
303 E. 17th AvenueSuite 510
Denver, CO
80203
Phone: (303) 866-1300
Fax: (303) 866-1085
The Denver District Office is open Monday - Friday from 8 a.m. to 5 p.m.
Colorado Civil Rights Division
1560 Broadway Suite 1050
Denver, CO
80202
Phone: (303) 894-2997
Toll-Free Phone: (800) 262-4845 (in state)
(© MMX CBS Television Stations, Inc. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed.)
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