Hugh Pixler Law

Pixler Law: Law Offices of Hugh Pixler

Practice Areas

Pixler Law specializes in the following areas of expertise.
(Click on the following for an overview of each practice area.)

Legal Advice

General employment law

General employment law is a broad category intended to communicate that our firm is not dedicated to one specific sub-area of emphasis, but that it has expertise and experience in virtually all areas of statutory and common law applicable to the employer-employee relationship.

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Age discrimination

Discrimination in employment on the basis of age is prohibited by federal law in the Age Discrimination in Employment Act of 1967 and by state law in the Colorado Anti-Discrimination Act. Both of these statutes protect employees who are 40 years of age and older from being subjected to adverse treatment on the basis of age in the terms and conditions of their employment. Generally, remedies available are for lost backpay and benefits, as well as "front pay". Liquidated damages are also available to double the measure of economic loss in cases of willful violation.

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Disability discrimination

The Americans with Disabilities Act of 1990 and the Colorado Anti-Discrimination Act both protect against discrimination in employment on the basis of disability. The federal Rehabilitation Act of 1973 provides additional protections for those employed by the federal government or those who work for companies that do substantial business with the government. These laws require that reasonable accommodation be provided for qualified individuals with a disability to allow them to perform the essential functions of their positions. An employee is considered "disabled", and therefore protected by these laws, if she is substantially limited in a major life activity. These laws also provide remedies for economic loss and non-economic injury where an adverse employment action is imposed on the basis of an individual's disability or because an employee made a complaint about disability discrimination.

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Constitutional claims

Constitutional claims can be made in the employment context when the employer is a governmental entity. Most such claims are brought pursuant to the First and Fourteenth Amendments. First Amendment claims are typically brought when an employee's Free Speech rights are infringed upon by an employer's retaliation against the employee for raising matters of public concern in the workplace. It should be noted, however, that these claims are not successful unless the employee can show that he spoke out as a "citizen" as opposed to as an "employee", i.e., he expressed his concerns outside the scope of his normal duties. Fourteenth Amendment claims include due process and equal protection claims. If an employee has a property interest in his position, determined by whether he has a "legitimate expectation of entitlement" to it under state law, he must be provided with due process before he can be deprived of his position. In addition, he cannot be deprived of his "liberty interest", essentially his good name and reputation, by false statements made about him during his termination from employment, unless he is provided with some level of procedural due process. Equal protection claims are generally made to address unequal treatment at work as compared to similarly situated co-employees. These cases are typically premised on membership in a discrete or protected class. A rarer type of constitutional claim is one of unreasonable search and seizure, brought pursuant to the Fourth Amendment. These claims are based on breaches of privacy rights, which are established where an employee has a legitimate expectation of such privacy at work. Because the United States Constitution contains no private right of action of its own, all of these claims are brought pursuant to a law called 42 U.S.C. § 1983, which has its origins in the Civil Rights Act of 1871.

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Employment contracts

The employment relationship is definitionally one of contract. The employee agrees to perform certain functions in exchange for a certain level of compensation. However, the contract is presumed by state law to be an "at-will" if the employee is hired for an indefinite period of time and the parties do not include in their agreement any kind of encumbrance on the employer's ability to terminate the relationship. The general principle is that at-will employment can be terminated at any time for any reason, or for no reason, with or without notice to the employee. Similarly, the employee can terminate the relationship in the same manner. Most private-sector employees are at-will, and therefore find any rights they may have in the exceptions to this general rule. Of course, when employment contracts are negotiated for a specific time period the relationship is not at-will (unless so specified), but is defined by the terms of the contract. In addition, the at-will presumption can be rebutted, giving the employee rights to her position, when employee handbooks or personnel policies are made a part of the employment relationship, and are not by their own terms clearly and conspicuously disclaimed. In some cases, even where a contract, implied or express, cannot be shown to have been breached, a misrepresentation or broken promise can provide the basis of a "promissory estoppel" claim.

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Employment-related torts

Torts are claims for civil wrongs that developed over centuries of English common law. They can be implicated in certain circumstances in the employment relationship, although workers' compensation laws have made it more difficult to bring these types of actions. They are typically brought where the employer is guilty of particularly egregious behavior. Claims of assault and battery can be made in some cases. Defamation claims are sometimes made where false statements are published about an employee's abilities or credentials. False imprisonment and outrageous conduct claims can be brought to remedy other forms of serious misconduct. Claims of fraud have been applied to cases in which employers have intentionally misrepresented the nature of a position or the viability of the employer itself in order to induce an applicant to accept employment. Perhaps the most common tort claim filed in the employment context today is one of wrongful discharge, or "public policy wrongful discharge". Employees can succeed on these claims by proving that they were fired for refusing to engage in unlawful conduct or for exercising a basic right they have as a citizen.

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Family and medical leave

The Family and Medical Leave Act of 1993 generally provides employees protections against termination or retaliation for taking time off work for a serious health condition, to care for a newborn child or to take care of a family member with a serious health condition. This law applies to those who work for employers with over 50 employees, and who have worked at least 1,250 hours for the employer in the previous year. It allows up to 12 weeks off from work per 12-month period.

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Federal employee issues

Federal employees usually have more rights to their positions than private-sector employees. They are also more restricted in other ways. Under the Civil Service Reform Act of 1978 federal employees can bring administrative claims to appeal disciplinary actions through the Merit Systems Protection Board. They have a variety of whistleblower protections. They can also use internal agency process to address claims of discrimination. On the other hand, through the Federal Tort Claims Act, the types of tort claims that can be brought are limited.

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Gender discrimination

Gender discrimination can be addressed through Title VII of the Civil Rights Act of 1964, the Equal Pay Act of 1963, and in cases of governmental discrimination, the Equal Protection Clause of the Fourteenth Amendment. In Colorado, the Anti-Discrimination Act can also apply. These cases are usually proved by showing intentional discrimination on the basis of gender, especially by way of stereotyping, but may also succeed by showing "disparate impact", i.e., that a neutral policy has a an adverse impact on one gender or the other. As with most discrimination cases, they may be difficult to prove, given the "intent" element, typically shown be circumstantial evidence. However, under the Equal Pay Act an objective analysis is required and intent need not be shown.

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Hostile work environment

Although many workplace situations may be hostile, only those that are hostile because of a protected class status are actionable, i.e., can form the basis of a legal claim. These claims derive from a 1986 Supreme Court case in which the Court found that where harassment on the basis of gender is sufficiently severe or pervasive to alter the terms and conditions of employment, it constitutes unlawful discrimination under Title VII of the Civil Rights Act of 1964. These cases are usually won by showing the work environment was contaminated by frequent, abusive conduct.

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Mediations

Mediation is the process by which two opposing parties voluntarily make use of an objective third party to try to resolve issues or settle their case. The talent and motivation of a mediator makes the difference in many cases. There are many good mediators in the front range area of Colorado, some of whom are available to parties at no cost, such as those at the Equal Employment Opportunity Commission, and the Magistrate Judges in Federal Court. Mediation, or "alternate dispute resolution", should almost always be considered, unless an opposing party has made clear that it will not negotiate.

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Race and color discrimination

Race and color discrimination cases are usually brought under Title VII of the Civil Rights Act of 1964 or the Colorado Anti-Discrimination Act. They should also be pled under a law call 42 U.S.C. 1981, originally codified pursuant to the Civil Rights Act of 1866. The cases are similar to gender discrimination cases in that they require the same kind of proof of discrimination, whether by intent (or treatment) or impact. However, because they may be brought under 1981, they are not constrained by the damages limitations contained in Title VII.

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Racial harassment

Racial harassment claims are based on allegations of hostile work environment and are similar of proof to the gender-based environment claim, only, here, of course it must be shown that the environment is made, or allowed to be, hostile, on the basis of an employee's race.

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Religious discrimination

Religious discrimination cases are typically brought under Title VII of the Civil Rights Act of 1964, although, as with Free Speech claims, may also be brought against governmental employers pursuant to the First Amendment. These claims can be made by showing either intentional discrimination or failure to reasonably accommodate religious beliefs, in a manner similar to cases involving disabilities.

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Sexual harassment

Sexual harassment is actionable in two different varieties: hostile work environment, as described under that heading above, or so-called quid pro quo cases. The latter claim is premised on evidence showing that an employee is offered special treatment, or told that she will not be subjected to unfavorable treatment, in exchange for "favors".

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State and municipal employee issues

State and municipal employees typically have job protections that private-sector employees do not have. They may have career service or other types of merit-system policies in place that give them certain internal administrative rights to appeal disciplinary or corrective actions, and they typically have a "legitimate expectation of entitlement", or property right, in their positions, thus allowing them to invoke constitutional protections. Therefore, many times they cannot be terminated except for "just cause". Just cause is usually based on performance or conduct factors.

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Unemployment compensation

Unemployment compensation in Colorado is controlled by Colorado Employment Security Act and regulations promulgated thereunder. Employees who are "laid off" or "riffed" (subject to reduction in force) usually have no problem in being found qualified and eligible for unemployment compensation benefits. However, many employees who are terminated can also qualify. The determination, made by a Hearing Officer if an initial decision is appealed, is based on which party is generally "at fault" for the separation from employment. Therefore, these hearings are typically about allegations of poor performance or misconduct.

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Wage and salary

The Fair Labor Standards Act of 1938 and the Colorado Wage Claim Act generally control wage and salary issues in Colorado. Issues can range from minimum wage or overtime pay to failure to pay to timing of final paychecks after termination. Many of these kinds of issues can only be addressed by doing an analysis of the employee's position as well as the nature and size of the employer.

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Whistleblower

There are now some municipal as well as state whistleblower protections available to employees in Colorado. In addition, sometimes First Amendment claims are appropriate. Federal claims include the longstanding False Claims Act, passed during the Civil War, along with a variety of agency-specific types of claims. One recent law that provides some new protections is the American Recovery and Reinvestment Act of 2009. These laws generally provide that employees cannot be retaliated against for bringing to light matters of public concern.

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