Chapter 12 - § 12.6 • SUGGESTIONS TO PLAINTIFF AND DEFENSE REPRESENTATIVES

• Jurisdiction: Colorado

§ 12.6 • SUGGESTIONS TO PLAINTIFF AND DEFENSE REPRESENTATIVES

§ 12.6.1—Plaintiff

Employees sometimes seek the guidance of plaintiff's counsel at an early stage prior to any disciplinary action. The employee may express concern that his or her supervisor insists on performance of an illegal act, and the employee fears retaliation for objecting to such a directive. Counsel should advise employees in this position that any concerns about the illegality of an order must be brought to the employer's attention, as required by Lorenz. Thoughtful suggestions may help such an employee rectify the problem internally within the company.

At trial, call witnesses, such as co-workers, who can testify about the actual impact of the employer's violation of public policy. This can bring to life what can otherwise be perceived by jurors as esoteric legal concepts. For instance, the plaintiff in Bonidy called co-workers to testify about the effect of the employer's denial of rest and lunch breaks on employees and patients.

§ 12.6.2—Defense

Public policy claims can be reduced, if not avoided, by cautious personnel practices. Resistance to management direction from employees who deal with quality control and compliance should be handled with particular care. When an employee raises a concern potentially implicating public policy, before the situation escalates further the employer should counsel the employee with the facts showing that supervisory direction...