Practice Areas and Legal Definitions

Employment Discrimination:
Discrimination generally occurs when an employee is intentionally treated differently because of race, color, religion, national origin, disability, gender, age, and in some states, sexual orientation.  Employment discrimination claims may be prosecuted under various state and federal statutes.  Even if the employee’s evidence is sufficient to show discrimination, an employer may be able to justify a particular job action by demonstrating that such treatment arose out of business necessity, or that a legitimate job qualification required consideration of factors that had an unintentional discriminatory effect.  When the employer makes such a legitimate justification, the employee must show that discrimination, not the employer’s justification, was the true reason for the action.

Age Discrimination:
It is unlawful for an employer, employment agency or labor union to discriminate in employment on the basis of age.  This includes refusing to hire an individual or firing an employee.  It also includes an individual’s compensation, the terms, conditions, and privileges of his or her employment, and all employee benefits.

Disability Discrimination:
Both the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973 protect individuals with disabilities from employment discrimination.  An individual with a disability is defined as someone who has a physical or mental impairment that substantially limits a major life activity, has a record of having such a physical or mental impairment, or is regarded as having such impairment.  The term is broadly defined to include any physiological, mental or psychologically-based impairment, but it does not include mere physical characteristics or cultural, environmental, or economic impairment—the impairment must cause a substantial limitation to a major life activity.  Temporary conditions, such as a broken arm or the flu, would not be considered substantial limitations amounting to a disability entitled to statutory protection.

Trade Secrets Agreements:
Employment contracts frequently contain provisions for the protection of the employer’s “trade secrets”.  These may range from customer data of one kind or another, to company designs, or even “secret recipes”.  Typically, the Trade Secrets clause of an employment contract will provide for “liquidated” damages in the event of disclosure of the information.  Liquidated damages are a set dollar figure agreed-upon in advance, to be paid in the event the contract clause is violated.

Non-competition Agreements:
Non-competition agreements are provisions contained within an employment contract which restrict the activities of an employee after leaving the service of the company.  Courts treat non-competition agreements with suspicion—with an eye toward preventing unnecessary and unreasonable interference with a person’s livelihood after severance of the employer/employee relationship.

The Courts will often decline to enforce “unreasonable” non-competition agreements.  A non-competition clause in the agreement under which a used car lot employs an auto mechanic will likely be summarily rejected by the court as unreasonable.  The agreement must be reasonable in duration.  A non-competition agreement barring the sales manager of a used car lot from engaging in the used car business for the rest of his or her life, or for 50 years, would probably be denied enforcement, while one with a 2-year term might well be enforced.  Non-competition agreements must be reasonable in the area covered.  If the agreement precludes the sales manager from engaging in the used car business anywhere in North America, it will almost certainly be denied enforcement as unreasonable.  If the area is limited to Lakewood, for example, it would probably withstand court scrutiny.

Labor Laws:
Historically, labor laws have focused on such matters as eliminating unsafe workplace conditions, securing a living wage for employees, and eliminating, or at least, tempering the strife that often occurs between employee and employers.  Since the appearance of organized labor, laws have established collective bargaining rights, and have sought to prevent either employers or employees, individually or through associations or unions, from engaging in unfair labor practices.  It is well-established, by various statutes, that both sides to a labor dispute are legally required to engage in good faith collective bargaining.  Modern labor laws also address such complex and often emotionally charged issues as strikes, picketing, mutual injunctive relief and lockouts.

Labor and Employment attorneys can help employers with the following:

• Reviewing client employee handbooks, manuals and policy statements
• Assisting with federal and state wage and hour law issues and claims
• Representing employers before the Equal Employment Opportunity Commission (EEOC) and state human rights agencies
• Providing advice on issues involving National Labor Relations Board (NLRB) representation and elections including campaign assistance
• Representing employers in unfair labor practice proceedings before the National Labor Relations Board and state labor agencies
• Providing representation for grievance and arbitration hearings under collective bargaining agreements
• Collective bargaining on behalf of clients including strategic planning and acting as spokesperson
• Counseling on issues related to strikes or lockouts and providing related litigation support

Employment Law:
Employment law is a well-established body of statutes and judicial decisions covering all rights and obligations within the employer-employee relationship, including current employees, job applicants and former employees.  It covers a wide range of legal issues, ranging from employment discrimination and wrongful termination to matters involving wages and workplace safety.  Many employment law issues are governed by applicable federal and state employment law, but a number of issues are determined according to basic contract law.

Employee Rights:
All employees have basic rights arising from both state and federal laws.  Some of these rights include:  the right not to be subjected to discrimination on the basis of race, national origin, skin color, gender, pregnancy, religious beliefs, disability, age, and in some places, marital status or sexual orientation; the right to a workplace free of harassment; the right to be paid at least the minimum wage as provided by federal or state law; the right to overtime wages as provided by federal or state law; the right to a safe workplace and the right to take leave to care for a personal or family member's serious illness, or following the birth or adoption of a child.

Wrongful Termination:
Termination of employment cannot be classified as "Wrongful Termination" unless it is in violation of some fundamental public policy, as set forth in a state or federal statute, regulation or constitutional provision.  Examples of Wrongful Termination include situations where:

• An employee is discharged for failure to comply with an order to perform an act that violates some law, ordinance or regulation, or
• An employee is discharged in retaliation for complaints about conduct by the employer that he or she believes to be unlawful, e.g., failure to pay overtime, or failure to comply with safety regulations.

Sexual Harassment:
Sexual harassment is any unwanted and unwelcome sexual behavior.  It involves a broad range of conduct, including such verbal harassment as derogatory comments, explicit sexual comments and descriptions of sexual exploits, leering or requesting sexual favors.  The term also describes physical harassment, ranging from inappropriate touching to outright sexual assault. In order to be classified as illegal the conduct in question must be both unwelcome and offensive to the victim.

Sexual harassment is a form of sexual discrimination, prohibited in employment settings under Title VII of the Civil Rights Act of 1964.  Title IX of the 1972 Education Act makes sexual harassment in schools or other educational settings unlawful.  The Federal Fair Housing Act also provides protection against sexual harassment, and most states have enacted legislation making it unlawful.

Overtime Compensation:
Under both State and Federal law employers are required to pay additional compensation to eligible employees who work more than forty hours during any seven-day period.  For every hour over forty hours in any given workweek the employer must pay the eligible employee at least one and one-half times the employee's ordinary hourly rate.

Defamation (Libel & Slander):
Defamation is the communication of a false and unprivileged statement that exposes another to hatred, contempt or ridicule, or which causes him or her to be shunned or avoided, or which has a tendency to injure him or her in his or her trade or occupation.  The defamatory statement must be communicated to someone other than the person to whom it refers and it must refer to a living person.

Defamation communicated verbally it is called "Slander," but if it is communicated in writing, it is called "Libel".  As a general rule it is easier to recover damages in a lawsuit for libel than in a slander lawsuit.  Most defamation litigation in the employment arena concerns the employer’s “qualified privilege” to defame.  Under this concept, employers and former employers are often protected from liability for defaming employees or former employees.  By its very definition, however, the privilege is “qualified,” and not “absolute”.  It is generally limited to situations in which the employer or former employer is making a good faith communication of information to someone who has a legitimate interest in receiving it.  A good example of this is a former employer’s good faith response to a new or prospective employer’s inquiry about the job performance of a former employee.  Generally speaking, even if the information given is false and damaging and would otherwise give rise to a defamation lawsuit, it will be protected under the “qualified” privilege.

If the communication exceeds the scope of the privilege, the privilege is not available.  For example, if the communication to your new or prospective employer is not in response to an inquiry, but a voluntary and unsolicited communication, liability for defamation will attach if the information is untrue.  Even if the communication is made in response to prospective employer’s inquiry, false and damaging information will not be protected by the privilege if it is made with knowledge or reckless disregard of its falsity, or with the intent to cause injury to the former employee.  It is important to remember that however damaging it may be, a truthful statement cannot form the basis of a defamation lawsuit.  This legal truism is often expressed in the phrase:  "The Truth is a complete defense to a defamation action".

Severance Agreements:
A severance agreement is a form of settlement agreement under which an aggrieved employee agrees to accept an agreed sum of money in exchange for, among other things, abandoning all claims against the employer.  Where it can be negotiated, a severance agreement saves money and aggravation for both sides. Severance agreements commonly include such provisions as "mutual non-disclosure of terms," an agreement that the employee will not compete against the employer, and that neither the employer nor the employee will make negative comments about the other.

Whistleblower Claims:
Whistleblower Claims involve employer retaliation, sometimes to the extent of Wrongful Termination, against an employee who reports the improper or unlawful conduct of another employee or of management itself to government authorities.  It is illegal for an employer to retaliate against a “whistleblower.”

Administrative Law:
Administrative Law is a system of justice outside the judicial system that is designed to bring resolution to conflicts arising within a detailed and technical structure of regulations.  Administrative Law Courts have a reputation for resolving issues with greater speed and efficiency than the judicial system.  Final Administrative Law decisions can be challenged in the Courts, but not until all administrative remedies have been exhausted.  Final Administrative Law decisions can also be converted to Court Judgments and then enforced by any of the traditional remedies available for the enforcement of civil judgments.

Injunctions:
Injunctions are a type of Court Order that either requires or prohibits specified conduct or behavior.  Injunctions are remedies frequently used in employment cases.  They involve such situations as injunctions requiring striking public employees to return to work, or injunctions requiring someone to stop engaging in an unlawful employment practice.  Willful failure to comply with an injunction can lead to a citation for contempt of court, and can result in significant money sanctions or even time in jail for the purpose of coercing compliance.

Employment Policy Manuals & Employee Handbooks:
An extraordinarily high percentage of Employment Law conflicts arise because there simply is no established company policy on a particular issue or the existing policy is either unknown or poorly understood.  Competent Employment Law counsel can help draft and put together a company policy manual that is both comprehensive and understandable, and an employee handbook that leaves no doubt as to what is expected from each employee, and what he or she can expect from the company.

Preparation and Presentation of Employee/Management Classes Covering Colorado Sexual Harassment & Employment Discrimination Issues:
Most Sexual Harassment and Employment Discrimination cases these days are the result of ignorance of and lack of sensitivity to these issues at various levels of management.  Arranging for formal classes concerning these matters can be both expensive and inconvenient, but the results of employee/management education about these matters will usually pay enormous dividends in terms of smooth employer/employee relations, and also in the peace of mind associated with avoiding expensive litigation and exposure to civil liability.

If you or someone you know in Colorado needs the assistance of an experienced Lakewood Employment Attorney, call Benezra & Culver today at 866-928-3805, or complete the contact form provided on this site to schedule your initial consultation.

If you or someone you know in Colorado needs the assistance of an experienced Lakewood Employment Attorney, call Benezra & Culver today at 866-928-3805, or complete the contact form provided on this site to schedule your initial consultation.

ADDRESS OF THE FIRM:
Benezra & Culver, L.L.C.
274 Union Blvd., Suite 220
Lakewood, CO 80228
Telephone: 866-928-3805
Fax: 303-716-0327

MEMBERS OF THE FIRM:

Seth J. Benezra
Seth Benezra is a 1980 graduate of Stanford University (A.B. with distinction) and a 1983 graduate of the University of Colorado Law School, where he served as Articles Editor of the Colorado Law Review.

Prior to entering private practice, Mr. Benezra worked as a trial and appellate attorney for the Colorado State Public Defender. Mr. Benezra is a lecturer in Employment Law at the University of Denver and has published and spoken extensively to legal professionals on employment issues. Mr. Benezra has tried numerous jury cases. Significant victories include Vaszlavik, et al. v. Storage Technology, an age class action case which settled for $5.0 million; Drake v. TalMor Capital Management, L.L.C., and Edmund Melhado, Case No. 01-CV-211 (Boulder 2002), a fraud case that resulted in a jury verdict of approximately $3.0 million; Carr v. Ft. Morgan School District, a disability discrimination case which resulted in a total judgment of approximately $300,000 plus an order of instatement; Holeman v. City of Commerce City, a whistle-blowing case which resulted in a settlement and judgment of approximately $400,000; Kulikowski v. Boulder County Board of County Commissioners, 231 F.Supp.2d 1053 (D.Colo. 2002); and Langely v. Adams County, a sexual discrimination and retaliation case that was tried in the United States District Court in Colorado and resulted in a million dollar settlement.

Mr. Benezra is widely regarded for his appellate experience and has been involved in a number of criminal and employment law appellate cases. Mr. Benezra was the President of the Boulder County Bar Association from 2002-03. Mr. Benezra is a member of the National Plaintiff's Employment Lawyers Association, the National Association of Criminal Defense Lawyers, the Criminal Justice Act Panel, the Colorado Criminal Defense Bar, the Boulder Bar Association, the Colorado Trial Lawyer´s Association, and the National Association of Criminal Defense Lawyers. Mr. Benezra's practice focuses on all elements of employment law and criminal defense work at the trial and appellate levels.

ACHIEVEMENTS:

• Co-counsel for the Plaintiff in Carr v. Morgan School District, a disability discrimination case tried in the United States District Court for the District of Colorado in September 1998, which resulted in a judgment and order to hire the plaintiff.
• Co-counsel for the Plaintiff in Langely v. Adams County, et al., in which the Plaintiff obtained a one million dollar judgment for sexual discrimination and retaliation.
• Counsel for the Plaintiff in United States ex rel. Gibson v. C.S.L.P., a Colorado District court case which alleged violations of the False Claims Act. Plaintiff obtained a settlement in excess of $300,000.
• Vaszlavik, et al. v. StorageTek, 183 F.R.D. 264 (D. Colo. 1998) (Co-counseled a class action lawsuit which settled for $5 million dollars and a commitment by the employer to include human resource training and policy amendments including age and benefits administration.)
• Mr. Benezra argued the case and wrote the brief in the United States Supreme Court, for the Defendant in Colorado v. Spring, 479 U.S. 564 (1987), a precedent setting case regarding the Miranda decision.
• Counsel for the Plaintiffs in obtaining several significant six figure settlements in cases alleging discrimination and constitutional violations.
• Lecturer in Employment Law at the University of Denver College of Law.
• Mr. Benezra has given speeches to the College of the Federal Advocates, the Colorado Bar Association, the Boulder Bar Association, the Arapahoe Bar Association, and the Colorado Trial Lawyers Association on employment law issues.
• Mr. Benezra organized the Colorado Trial Lawyers 2001 Convention on Employment Law and Litigation and has served as co-chair of the BCBA Employment Law Committee.
• Mr. Benezra has been recognized as and testified as an expert in sexual harassment law.

John A. Culver
John Culver graduated from the University of Kansas with honors in 1987 and graduated from the University of Pennsylvania Law School in 1992. In 2006, Mr. Culver was recognized as one of Colorado's top attorneys through Law & Politics and 5280 Magazine's "Super Lawyer" nominations. Mr. Culver has considerable experience with multi-party and class action litigation, including as lead counsel in the certified age and benefits discrimination class action Vaszlavik, et al. v. StorageTek, which settled for $5 million and significant affirmative relief.

Mr. Culver is an experienced trial lawyer who obtained a $2.9 million Judgment (exclusive of attorney fees and rights) in Drake v. TalMor Capital Management, LLC and Edmund Melhado, a case involving fraud and breach of employment contract. Mr. Culver has extensive experience representing governmental employees, as well as with constitutional civil rights litigation. Mr. Culver is an active member of the American Civil Liberties Union, is a member and former Vice President of the Colorado Chapter of the National Employment Lawyers Association, and the Denver, Colorado, and American Bar Associations. Mr. Culver has been an adjunct professor of employment law at the Denver University College of Law since 1997.

He regularly instructs members of the bar regarding employment law and civil litigation, including at the Equal Employment Opportunity Commission's "Technical Assistance and Training Program," CLE International's "Employment Law Update," CLE International's "Employee Handbook Seminar," Lorman's "Federal Civil Litigation Seminar," the Colorado Bar Association's "Employment Law Update," the Plaintiffs Employment Lawyers Association's seminar regarding public sector employees, the Colorado Trial Lawyers Association's Annual Convention Employment Law section, and the Institute for Advanced Legal Studies seminar regarding "False Claims and Whistleblowing." He has appeared on Denver's local network affiliates, as well as ABC Nightly News, HBO Inside Sports, the Reggie Rivers Show, and the Bradshaw Difference concerning his representation of the disabled.

ACHIEVEMENTS:

• Named "Super Lawyer" as one of Colorado's top attorneys by Law & Politics and 5280 Magazine.
• Adjunct Professor of Employment Law at the Denver University College of Law.
• Member, Madison's Who's Who
• Lead counsel in Drake v. TalMor Capital Managment, LLC and Edmund Melhado, in which the jury awarded the Plaintiff $2.9 million (exclusive of attorney fees and costs) on claims of fraudualent breach of employment contract.
• Vaszlavik, et al. v. StorageTek, 183 F.R.D. 264 (D. Colo. 1998) (Lead counsel in a class action lawsuit which settled for $5 million dollars and a commitment by the employer to include human resource training and policy amendments including age and benefits administration.)
• Co-counsel for Plaintiff in Carr v. Fort Morgan School District in which the Plaintiff prevailed in unusual failure to hire case under the Americans with Disabilities Act and the Rehabilitation Act.
• Co-counsel for 22 Plaintiffs in Carbone, et al. v. Public Service Company in which Plaintiffs obtained a nearly $900,000 judgment based upon claims for the breach of a lifetime employment contract.
• Co-counsel for Plaintiffs in obtaining several significant six figure settlements in cases alleging discrimination and constitutional violations, including settlements in excess of $450,000, $650,000, and $950,000.
• Counsel for Plaintiffs in Nash, et al. v. City and County of Denver where Court held that Defendant's Ordinance violated the Colorado Open Records Act and awarded nearly $60,000 in attorney fees and costs.
• Counsel for the Plaintiff in Howard v. U.S., for which the District of Colorado published its opinion at 864 F.Supp. 1019 (D. Colo. 1994), in a novel and precedent-setting case in which a prisoner at the Federal Correctional Institute in Englewood, Colorado obtained a preliminary injunction of an unconstitutional Bureau of Prisons' policy which infringed upon the Plaintiff's freedom of religion.
• Instructor at numerous legal seminars including the Equal Employment Opportunity Commission's "Technical Assistance and Training Program", CLE International's Employment Law Update," CLE International's "Employee Handbook Seminar," the Colorado Trial Lawyers 2001 Convention, the 2000-2003 Federal Civil Litigation Seminar, the Boulder Bar Association Employment and Labor Law Monthly Meeting, the Plaintiffs Employment Lawyers Association Monthly Meeting, and the Institute for Advanced Legal Studies seminar regarding "False Claims and Whistleblowing."
• Guest on local Denver News, ABC Nightly News, HBO Inside Sports, the Reggie Rivers Show, and The Bradshaw Difference concerning his representation of civil rights plaintiffs.