This is the first post in what I expect to be an occasional series on the doctrine of employment at will.  At this point in time, I have no idea how many posts I may write on this subject.

Employment at will is the most important concept in employment law that most people do not understand.  Most lawyers in the U.S. are familiar with the concept.  Some laypeople have a general idea that their state (if it’s not Montana) is an “employment at will” state.  But they often do not know what that means, and almost certainly do not know how this legal doctrine originated.

Many laypeople in the U.S. do not understand that they are employed at will.  They believe that their employers must have a good reason to fire them.  If they were employed in almost any other country, that belief would be accurate.  The United States is one of the few countries in the world in which an employer can fire an employee without having to have a reason for that decision.

What is employment at will?  I like to define it as the legal presumption that a person who is employed for an indefinite period of time can be fired for a good reason, a bad reason or no reason at all, as long as it’s not an unlawful reason.

There are several situations in which this legal doctrine does not apply:

1. Persons who have a contract for employment for a specific term, or length of time.  Not surprisingly in 21st century America, there is a class divide between the few who have such contracts and those who do not.  Highly compensated executives, professional athletes and media employees (e.g., television news anchors) often have such contracts, given their market power.  Such contracts are rare outside those employee groups.
2. Employees who are covered by a collective bargaining agreement — a contract between a labor union and an employer — generally can be fired only for a good reason.
3. Public employees often can be fired only for cause.  That generally applies only after the employee has satisfactorily completed a probationary period of employment.  And some government employers, usually local governments, maintain employment at will policies.

Outside those situations, employment at will is the default rule in the United States.  Plaintiffs’ lawyers try to identify claims that could provide relief for their clients.  The most common are statutory claims, such as those based on anti-discrimination laws; contract claims; and tort claims, such as fraud or wrongful discharge.  But employment at will is the background to all of those claims.  It is what many judges feel to be the state of nature, the way they understand the world of employment works.

In reality, employment at will arose from obscure origins, is justified by questionable assumptions, and often leads to unjust results.  Many people in the U.S. accept it because they too believe that that is how the world works.  The fact that employment at will can be used to facilitate sexual harassment, or to punish whistleblowers, or to prevent unionization is viewed as an unfortunate by-product of a rule they believe to be universal.

In fact, that is not how most of the world works. But that will require more posts to explain.

Last week, I wrote a blog post about a new statute, enacted in 2016, which requires Colorado employers to allow employees and ex-employees to inspect and obtain copies of documents in their personnel files.  In this post, I will discuss another 2016 Colorado statute.

That statue, which added a new sec. 24-34-402.3 to the Colorado Anti-Discrimination Act (“CADA“), requires all Colorado employers to provide reasonable accommodations for health conditions related to pregnancy or the physical recovery from childbirth.  It also provides:

• Any accommodation must be requested in writing.
• An accommodation cannot impose an undue hardship on the employer. The courts could and should use the definition of “undue hardship” adopted under CADA and the federal Americans with Disabilities Act (“ADA”).
• An employer cannot take an adverse employment action, or deny employment opportunities, to an employee who has requested a reasonable accommodation or based on the need to make a reasonable accommodation.
• An employer cannot require an employee to accept an accommodation that the employee has not requested or that is not necessary for the employee to perform the essential functions of the job.
• An employer cannot require that the employee take leave if the employer can make another reasonable accommodation.

The definitions make it clear that this new statute uses retaliation and ADA concepts.  The definition of “adverse action” is based on the “materially adverse” concept that the Supreme Court has applied to retaliation cases. The definition of “reasonable accommodation” is also broad, and specifically includes “more frequent or longer break periods” and “more frequent restroom, food, and water breaks.”  The term “undue hardship” is defined to mean “significant difficulty or expense to the employer.”  That definition includes factors that may be considered in determining whether an accommodation would impose an undue hardship.

An employer cannot be required to do any of the following:

• Hire new employees that the employer otherwise would not have hired;
• Discharge an employee, transfer an employee who has less seniority, or promote an unqualified employee;
• Create a new position, including a light-duty position, “unless a light duty position would be provided for another equivalent employee”; or
• Provide paid leave beyond that which is provided to similar situated employees.

This new statute is far from perfect.  It includes many compromises that were necessary to get it passed.  Still, it represents a major legal advance for pregnant employees in Colorado.  It requires employers to provide accommodations, including leave time, that frequently have been denied to pregnant employees.  While it is not certain that the courts will interpret this statute correctly, its enactment should make it easier for pregnant employee and new mothers to continue to work.  In short, it made Colorado a more family-friendly state, without imposing significant hardships on employers.

One relatively recent change in Colorado employment law is a personnel file access law enacted by the Colorado General Assembly in 2016.  That law became effective on Jan. 1, 2017.

This law added a new section 8-2-129 to the Colorado Revised Statutes.  Some highlights of this new law are:

• It covers most employees and employers in Colorado, OTHER THAN those covered by the Colorado Open Records Act.  That exemption covers public employees.  The new statute applies to all non-exempted private employers, regardless of the number of employees who work for an employer.
• It does not cover any financial institution chartered and supervised under state or federal law, including banks, trust companies, savings institutions and credit unions.
• Its definition of the term “personnel file” is broad.  That term includes all personnel records “that are used or have been used to determine the employee’s qualifications for employment, promotion, additional compensation, or employment termination or other disciplinary action.”  There are four exceptions:
  • Documents (such as medical or FLMA documents) that federal or state law requires to be kept in a separate file from the personnel file;
  • Documents or records pertaining to previous employers’ confidential reports;
  • An active criminal investigation, active disciplinary investigation by the employer, or active investigation by a regulatory agency; and
  • Any information that identifies any person who made a confidential accusation.
• There are limits to requests to inspect and copy personnel files.  They are:
  • An employee or ex-employee can request copies of personnel files at least annually; except that an ex-employee can request inspection once, and presumably only once, after termination of employment.
  • The inspection and copying shall occur at the employer’s office.
  • The inspection must be at a time that is convenient to both the employee and employer.
  • The employer can require the inspection to occur in the presence of another person designated by the employer.
  • The employer may require the employee to pay the reasonable costs of duplication of documents.
• The law does not require an employer to maintain personnel file or any particular documents in a personnel file.  However, those requirements might be imposed by other laws.
• The law does not create a new cause of action — that is, a right to file a lawsuit to compel compliance or to seek damages for an employer’s failure to comply.

A request to inspect and copy a personnel file should be fairly easy to prepare. According to the statute, it does not have to be on a particular form or in any particular format.  However, nothing in this statute prohibits any employer from requiring that an employee use a particular form.  Inspection and copying should be a relatively simple, straightforward process.

An employer that fails to produce personnel documents under this statute could face judicial and/or jurors’ skepticism if it claims to have “discovered” missing documents later.  Specifically, a judge or jury would be free to conclude that these “recently discovered” documents are fakes, created after the fact to justify an earlier employment action.

Employees, ex-employees and their representatives should use this new statute routinely.  Employees’ lawyers know that it is better to discover a negative document before filing a lawsuit, rather than to learn about it after spending hundreds of hours and many thousands of dollars in litigation.  In some cases, learning what documents are in a person’s personnel file might cause that person not to file a lawsuit.  Early inspection can avoid nasty surprises later.

Colorado and about 19 other states have enacted personnel file access laws.  This new law will help shed a light on employment practices that, until now, too often have occurred in the dark.