Diane Vaksdal Smith’s Answers

Diane Vaksdal Smith

Centennial Employment / Labor Attorney.

Contributor Level 4
  1. Can I/Is it worth it to take my former employer to court for wrongful termination damages if I had an at-will-status?

    Answered over 1 year ago.

    1. Diane Vaksdal Smith
    2. Robert John Murillo
    3. Alan James Brinkmeier
    3 lawyer answers

    Generally, the decisions by unemployment do not control anywhere except in the unemployment process. Often the courts - where you go for a wrongful termination case - say that the decisions by unemployment are iirrelevant. That's because the decision for unemployment doesn't have anything to do with wrongful termination. The decision-maker for unemployment benefits has to decide who was "at fault" for the separation, in order to decide entitlement to benefits and nothing else. Without a...

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  2. Is it possible to sue my employer for not giving me law required breaks/working in un-safe conditions?

    Answered over 1 year ago.

    1. Christopher Daniel Leroi
    2. Diane Vaksdal Smith
    2 lawyer answers

    The Colorado Department of Labor has jurisdiction to investigate a lack of break time, under the Colorado Minimum Wage Order #29. Did you tell your employer that you had a medical condition and ask for accommodation? You might want to consult the EEOC or the Colorado Civil Rights Division about a possible claim of disability discrimination.

    2 lawyers agreed with this answer

  3. I believe I was forced into independent contractor employment so my employer would not have to pay over time wages.

    Answered over 1 year ago.

    1. Diane Vaksdal Smith
    1 lawyer answer

    Your status generally turns on how much control the employer exercises. If you have been treated as an employee, except for compensation and benefits, then you may be misclassified. The Colorado Department of Labor has free information on line that might help.

    1 lawyer agreed with this answer

  4. I was involuntarily terminated from my job as the local manager of a national company. I applied and was approved for UI.

    Answered over 1 year ago.

    1. Diane Vaksdal Smith
    1 lawyer answer

    If she is at the hearing, you have the opportunity to confront the testimony. The problem would be if they rely on that person's accusations but don't bring her to the hearing, but have someone else say what the accuser said. If that's the case, then the hearing officer will probably have to decide whether the evidence is credible or not.

    1 person marked this answer as helpful

  5. Recourse beyond workmans comp? Inhalation injury after being required to haul hazardous material in a passenger car.

    Answered almost 3 years ago.

    1. Daniel Nelson Deasy
    2. Diane Vaksdal Smith
    3. Gerald Gregory Lutkenhaus
    3 lawyer answers

    Colorado has a very expansive worker's compensation law and covers most employment situations. Sometimes, the employee can still sue if the employer does not have worker's compensation insurance. However, your note indicates that you are receiving benefits, including payment to your doctor. So, more likely than not, worker's compensation will be your exclusive remedy for the injuries you suffered. However, it never hurts to talk the situation over with a worker's compensation attorney...

    1 person marked this answer as helpful

  6. Is it legal for an employer to not allow his employees bring in a lunch or go out for a lunch but to purchase lunch there?

    Answered over 1 year ago.

    1. Diane Vaksdal Smith
    2. Kristine Kowalski
    3. Cristine Wasserman Rathe
    3 lawyer answers

    I'm not sure I understand your question. Is the employer saying the only way you get a lunch is one purchased on site from a cafeteria or something? That sounds pretty fishy to me. Has your employer said why? This might be something to ask your local Department of Labor about.

    2 lawyers agreed with this answer

  7. I am trying to find out where to look or what the statute of limitations for an at will contract employment is for breach of se

    Answered over 1 year ago.

    1. Stuart Warren Moskowitz
    2. Vincent Peter White
    3. Kevin Rindler Madison
    4. Diane Vaksdal Smith
    4 lawyer answers

    Every state has it's own statute of limitations. You need to talk to an attorney in the state whose law applies to your contract. Look at the contract and see if it says something like "the law of the State of ____ applies." Otherwise, it may be the state where you work. This isn't something you should decide based on a website like Avvo, but only based on good solid advice by an attorney who understands your case.

    2 lawyers agreed with this answer

  8. Is my friend being discriminated at work???

    Answered over 1 year ago.

    1. Diane Vaksdal Smith
    2. Christine C McCall
    2 lawyer answers

    Very difficult to answer with only these facts. Only recently has obesity been recognized as a possible disability. Also, there's nothing mentioned about whether they took any adverse action against him. Merely looking him up and down on one occasion, as you describe, may not be enough to make a claim for discrimination. In any case, if he is concerned he can consult with the EEOC or the Colorado Civil Rights Division.

  9. Should I take cash or check for tax purpose from my employer?

    Answered over 1 year ago.

    1. Arnold Garson Cohen
    2. Diane Vaksdal Smith
    3. Andrew Endicott Schrafel
    3 lawyer answers

    Generally there are several problems with taking case instead of a check showing deductions and contributions. Money received as wages is almost always taxable, but being paid in cash means no withholding for state or federal taxes. An employer is supposed to pay a percentage for social security type benefits (as are you)but being paid in cash generally does not include that kind of contribution. Without any documentation (like a pay stub) showing the withholdings and contributions, you could...

    1 lawyer agreed with this answer

  10. Is it considered discrimination to be terminated after complaining about sexual harrasment?

    Answered almost 3 years ago.

    1. Christian K. Lassen II
    2. Marian K Schneider
    3. Marilynn Mika Spencer
    4. Diane Vaksdal Smith
    4 lawyer answers

    You may have a hostile work place claim, though it may not meet the standard of severe or pervasive. Your situation is more likely a retaliation claim. Retaliation occurs when you engage in "protected activity" - making a complaint about some form of discriminatory conduct - and the company takes adverse action against you. In this case, terminating you for the complaint. The Company will likely say you were terminated for wrongful conduct (listening to the phone call) but you have the...