Unfair or wrongful termination occurs when an employer illegally fires an employee from their job. The majority of employees are at-will employees, which means that their employer is legally permitted to terminate their employment at any time and for any reason.
This means that the employer is permitted to terminate the at-will employment arrangement for any reason or even for no reason at all. An at-will employee is also permitted to leave their job at any time, for any reason, or for no reason at all.
There are, however, laws in place which protect employees. If an employer violates these laws when terminating an employee, it is considered wrongful termination.
Examples of unfair or wrongful termination may include, but are not limited to, the following:
- Discrimination;
- Retaliation;
- Breach of good faith and fair dealing;
- Violation of public policy; and
- Family or medical leave.
If an individual's employer terminates them based upon their belonging to a protected class, it is considered discrimination and, therefore, is a wrongful termination. Protected classes include:
- Race or color;
- National origin;
- Sex;
- Religion;
- Age;
- Disability;
- Pregnancy; and
- Sexual orientation.
- Veteran status
If an employee belongs to a protected class and is fired for discrimination against that protected class, it would likely be considered wrongful termination. Some other examples of wrongful termination include but may not be limited to:
- Retaliation: This occurs when an employer fires an employee after they have engaged in a legally protected activity. Common examples include firing an employee after they have filed a complaint due to sexual harassment, discrimination, or assault. Another example is firing an employee after they have filed a complaint with the Equal Employment Opportunity Commission (“EEOC”);
- Whistleblowing: Similar to retaliation, states have whistleblower laws in place to protect employees who report their employer's actions, when those actions are harmful to public interest. If an employer fires an employee for whistleblowing, it would be considered wrongful termination;
- Fraud: Fraud most often occurs during the recruiting process. An employer makes a false representation to a prospective employee in order to persuade them into employment. In order to prove fraud, you would need to prove that the employer made a false claim with the intent to deceive you. Further, you need to demonstrate that you relied on the false claim, and were consequently hurt in some way because of this reliance;
- Defamation: Defamation can occur when an employer is in the process of terminating the employee, or when subsequently asked for a reference. The employer makes false and/or malicious statements about the employee (or former employee), so that it is difficult for them to find meaningful employment in the future; and
- Violations of Public Policy or Other Laws: Employers may not terminate employees if doing so would violate public policy, or other employment laws. The most common example of this would be how employers cannot terminate an employee for taking time off of work to complete jury duty.
An employee who reports their employer for a workplace violation is legally protected from retaliation. If an employer responds to the actions of the employee by terminating their employment, it is considered wrongful termination and is illegal. It is also a breach of good faith and fair dealing when an employer terminates an employee for certain reasons. For example, it is considered wrongful termination if an employer terminates an employee for a reason that is fabricated. In some cases, a termination may be a violation of public policy. For example, if an employer terminates an employee due to their membership in a recognized political party or group, it may be wrongful termination. If an employee has to take time off for extended medical leave, which can include caring for a sick loved one or taking maternal or paternal leave, they are protected under the Family Medical Leave Act (FMLA). Pursuant to the FMLA, employees are entitled to unpaid leave and their job must be there when they return. If an employer terminates an employee due to taking off for medical reasons, it may be considered a wrongful termination.
Can At-Will Employees Sue for Wrongful Termination?
Generally speaking, employees in the United States are considered to be at-will employees. At-will means that either the employer or the employee may terminate the employment relationship at any time, for any legal reason, including no reason at all. Whether the employee did anything wrong or “deserved” to be terminated is usually inconsequential; so long as the reason for the firing was not illegal, the termination is not considered to be wrongful.
In an at-will employment arrangement, employees may be fired for no reason. Employers do have the right to terminate at-will employees at any time, and without any cause. Once again, employers may not terminate an at-will employee for any reason that would be considered illegal. If an at-will employee wanted to sue their employer for wrongful termination, they would need strong evidence that the employer acted illegally. Wrongful termination in an at-will state would generally consist of the employer firing the employee for an illegal reason; in other states, wrongful termination could be due to the employer breaching the employment contract.
Suing My Former Employer for Wrongful Termination
Employees can sue an employer for firing them. However, there is a specific process that must be adhered to before that may happen. The first step would be to contact the human resources department, as they may be able to provide assistance without getting an attorney involved. If they cannot solve the problem, the employee may then file a complaint with the EEOC.
It is important to note that although the EEOC exists to combat discrimination, and protect employees, employees cannot sue for discrimination in a federal court without first going through the EEOC. Once the EEOC has received the employee's complaint, they will likely conduct an investigation into the workplace and propose a resolution to the issue at hand. If the EEOC cannot provide a remedy to the employee, or if the remedy is not sufficient, the employee may proceed to filing a civil lawsuit.
Proving Wrongful Termination
For both an EEOC complaint and a lawsuit, you will need to provide a significant amount of evidence to prove wrongful termination. This is especially true if you were employed in an at-will state. Common examples of evidence used when you sue for being fired can include:
- A copy of your employment contract;
- Emails, text messages, voicemail, and other documentation of relevant communications;
- Pay stubs;
- Witness statements; and
- Hiring and firing forms.
An attorney can help you gather all relevant evidence in order to build the best case possible.
What Doesn't Count as Wrongful Termination?
As previously mentioned, at-will employment leaves little room for wrongful termination claims. There are few things that actually constitute wrongful termination, especially in an at-will state. Some examples of what does not count as wrongful termination could include:
- Being fired for being repeatedly tardy, even if you had a good reason;
- Your employer no longer needing your services;
- Being terminated during a probationary period in which it is understood that you could be terminated at any time; and,
- Being terminated without being provided with any notice or “clues” of what was coming.
Workplace Disputes
If an individual is involved with a workplace dispute, they should first consult their employee handbook. Employee handbooks are used to provide guidelines and instructions regarding policies and procedures of the company as they apply to various work-related topics and disputes.
Once an individual has consulted their employee handbook, they should record everything they can about the situation in writing prior to approaching their employer with a dispute. It is essential that the individual be clear about their issue and state the facts.
Communicating with an employer regarding a dispute may produce better results if the individual is prepared with a possible outcome or solution in mind, which may include changing shifts to avoid an individual or moving departments for the same reason. It may be possible to reach an agreeable solution with an employer prior to concluding the conversation. If, however, an individual and their employer are not able to reach a resolution, the individual may want to consult with an employment attorney.
Workplace disputes which are related to wage and overtime complaints may require the individual to file a claim with the Wage and Hour Division (WHD) of the United States Department of Labor. If the dispute is related to discrimination, it may require the individual to file a claim with the Equal Employment Opportunity Commission. (EEOC).
Responding to Disciplinary Actions
If an individual receives a disciplinary action which they feel is incorrect, they should challenge the action in the most professional manner possible. If they receive a disciplinary action such as a write-up, they should immediately inform their employer that they disagree with the contents in a calm manner and then state the facts as to why. Acting in this way could resolve the issue in that moment, without requiring further action, either internal or legal.
Another response option may be for the individual to inform their employer that they will be submitting a rebuttal as soon as they are able to do so. In the individual's rebuttal, they should address each accusation and issue as well as provide evidence to support their claims. If the individual is required to sign the write-up in order to avoid further disciplinary action, they should do so and notate that their signature does not indicate that they agree with the contents of the document.
An employer's disciplinary policy should follow certain specific guidelines in order to ensure fairness and respect. The disciplinary policy should be coupled with a clear code of conduct.
The disciplinary policy should be written down and displayed in a location that all employees would easily be able to see it. A new employee should be presented with the disciplinary policies and workplace rules and should also be made aware of any penalties which are imposed for violations of the code of conduct.
It is important that the disciplinary policy is not written as a contract. In addition, there should be a process for appeals where an employee has the opportunity to explain their conduct which led up to the violation.
How Can An Attorney Help Me in Suing for Wrongful Termination?
If you feel you have been wrongfully terminated, you should consult with a skilled and knowledgeable wrongful termination attorney. An experienced employment law attorney can review the facts of your case and determine what your best course of action is. Additionally, an attorney can help you through the EEOC process, as well as represent you in court as needed. Should you need to sue your former employer for wrongful termination, the attorney may help you recover appropriate damages. Also, it is vital to have the assistance of an wrongful termination attorney for any workplace disputes you may be facing. It can be difficult and intimidating to navigate a workplace dispute or a wrongful termination because the state laws vary on the subject. In addition, in most cases, the employer has an advantage.
Therefore, if you are involved in any type of workplace dispute or you have been wrongfully terminated, it is important to consult with a well-qualified and knowledgeable attorney. Your employment law attorney can advise you of your rights, advise you of the best possible legal actions and their possible outcomes, and assist you with filing claims or a civil lawsuit. Your attorney will represent you before any boards or agencies as well as in court.
