Colorado’s Unemployment Notice Requirement Should Ensure the Reason for Separation will Satisfy the Pretext Analysis for Discrimination Cases
Kenneth Stable, Law Clerk
On May 25, 2022, Governor Jared Polis signed Senate Bill 22-234 into law, which took effect immediately.[1] The bill expands Colorado’s notice requirements to employees for unemployment benefits upon termination of employment to include the:
1) Employer’s name and address;
2) Employee’s name and address;
3) Employee’s ID number or the last four digits of their SSN;
4) Employee’s first and last dates worked, year-to-date earnings, and wages for the last week worked; and
5) Reason the employee separated from the employer. [2]
No official form is available to employers, but it is expected that the Colorado Department of Labor and Employment (“CDLE”) will develop one in the near future.
When employers provide the unemployment notice, they should keep in mind that employees may later bring employment discrimination claims, and in doing so, the employer will have to show a legitimate, non-discriminatory reason for terminating the employee’s employment. In response, the employee may argue that the company’s decision to terminate is a pretext for discrimination.[3]
It will be important to ensure that the proffered reason for the employment separation in the unemployment notice provides enough information to withstand a discrimination pretext analysis. For example, if an employee has his employment terminated for multiple reasons, i.e., violating company attendance policy, violating conflict of interest policy, and poor judgment, but the employer only includes the violation of the attendance policy in the unemployment notice, the employer may not withstand a pretext analysis in a discrimination claim when it subsequently tries to rely upon the employee’s violation of the conflict of interest policy and poor judgement as additional reasons for the employment termination.
Key Takeaway
When drafting unemployment notices (which are required by Colorado Law), employers should ensure the reason for separation is broad enough to include all reasons for terminating employment to ensure they can properly defend a subsequent pretext argument in a discrimination claim.
[1] Unemployment Compensation, Unemployment Compensation - Colorado General Assembly (2022), https://leg.colorado.gov/bills/sb22-234 (last visited Jun 22, 2022).
[2] Colo. Rev. Stat. Ann. § 8-74-101 (West).
[3] Williams v. Dept. of Pub. Safety, 369 P.3d 760, 772 (Colo. App. 2015) (The sequence and timing of events leading up to the adverse action and post-hoc justifications can be evidence of pretext against employers and possibly lead to a decision in favor of the discrimination claim).