Wrongful Termination: Is It Unlawful Firing? What to Do [Examples]
Have you ever been fired from your job or know someone that has? What did you think of the termination process? Was it fair or unfair?
When you think about it, wrongful termination is quite ambiguous. What does it even mean?
Like with any conflict, both the employer and the employee will narrate different versions of the termination.
Will you win the suit?
So before you rush to file a wrongful termination suit, let’s learn some basic laws regarding employment termination, shall we?
WHAT IS WRONGFUL TERMINATION?
Wrongful termination refers to illegal dismissal from your work place.
This could happen as a result of discrimination, retaliation or breach of your employment contract.
However, you will be surprised to find out that although wrongful termination is illegal, there is no specific legislation that covers wrongful termination. Instead, the term wrongful termination is just an umbrella term that covers different federal and state laws that define what an employer can and cannot do when it comes to firing an employee.
Because of this, what is considered as wrongful termination will vary from one state to the other.
Often these cases are judged based on existing precedents.
Unless the employer is found guilty of breaking a specific public policy, law or breaching the employment contract, you don’t stand much of a chance in court.
And it gets worse…
One of the biggest barriers to claiming wrongful termination is at-will employment.
This is an employment set-up that allows the employer to dismiss an employee without any notice or giving a reason for it. In this employment set-up, the employee can also quit without notice.
With the exception of the state of Montana, most workers in the United States are at-will employees.
In Montana, after a probationary period of no more than six months, the employer will need good cause to terminate your employment.
However, at-will employment is also protected by civil right laws and other illegal termination laws.
This explains why most employers under this set-up will not give a reason for termination to avoid mentioning something that could get them sued.
But don’t frown just yet. While at-will employment gives the employer the freedom to terminate employees’ employment whenever they want, with or without reason, there are situations that the employer is not allowed to fire an employee. In such situations, the employee can sue for wrongful termination.
These situations include:
Under Title VII of the Civil Rights Act of 1964, employment discrimination occurs when your employment is terminated unfairly because of your race, age, religion, gender, disability, skin color or national origin.
Both federal and state law take discrimination so seriously that it extends to all facets of employment including hiring, promotion and firing.
Some state laws also protect employees against discrimination based on pregnancy, language, family responsibilities, genetic information or sexual orientation.
This one of the most common types of discrimination reported to the Equal Employment Opportunity Commission (EEOC) every year.
Federal and state laws deem it illegal for an employee to be discriminated at their workplace because of their disability.
However, the only exception is when it directly affects the employee’s performance hence disrupting the company’s normal functions.
The Age Discrimination in Employment Act protects persons over the age of 40 against age discrimination.
Although various state laws have varying laws, you can sue for age discrimination if your company has about 20 employees.
Typically, this law is put in place to avoid such cases where you are fired because the company needs more “young blood.”
Often, companies will not directly mention that age was the reason for dismissal but it can be implied in their actions. For example, it is legal for an employer to lay you off due to financial constraints.
But if they do so and retain younger employees who are often paid less, this will be legal grounds to sue for age discrimination.
The employer should choose who to lay off based on their job performance, not age.
However, in the event both the aggrieved party and the person favored fall within the mentioned age group, the younger employee cannot sue the employer.
Prior rulings show that the law always favors the older person. For example, if a 42-year old is fired while a 62-year old retains their job, the 42-year old cannot claim age discrimination.
An employer cannot terminate your employment or fail to hire you based on religious stereotypes.
Additionally, the company is also required to protect you against any harassment within the workplace arising from your religion.
Your employer cannot fire you based on your race or associating with someone from a certain race at work. Racial discrimination is evidenced by negative racial remarks during your employment or leading up to your dismissal.
Under the Pregnancy Discrimination Act (1978), employers cannot fire or fail to hire or promote an employee because they are pregnant.
According to the law, pregnancy is a non-permanent condition which requires special treatment.
How to Handle Discriminatory Termination
Although it sounds pretty easy, it can be difficult to claim discrimination in the event of termination. There needs to be direct or circumstantial evidence proving that the allegation is true.
Obviously, hard direct evidence would be most appropriate.
But most supervisors are well coached by their lawyers or are generally cautious and will not make this discrimination obvious.
Direct evidence includes verbal or written remarks upon or prior to your dismissal that imply discrimination.
For example, your supervisor could have called you “old goods” which qualifies as age discrimination.
Another example would be a cashier being fired after an accident that crippled them although their job description does not involve lots of physical movement.
If you feel that you have enough grounds to sue for discrimination, you should consult a lawyer immediately. You should also file your file a charge with the EEOC as soon as possible.
This needs to be done early so that investigations into your claim can begin.
The law protects you against unfair dismissal after you have engaged a legal process such as reporting illegal activity within your workplace such as sexual harassment or money laundering.
To put it simply, in the eyes of the law, whistle blowers need to be protected and not punished or fired.
Other protected activities falling within this category include engaging in union activities or claiming disability accommodation.
For example, let’s say Jim the supervisor has been making passes at you.
But when you finally can’t take it and formally report it to HR, you lose your job the following month.
You can also get caught in the crossfire after reporting another harassment of another employee.
Both instances scream retaliation and you have legal grounds to sue the company.
Additionally, you can sue for wrong termination if you are fired after reporting labor law violations such as unpaid wages or failure to pay minimum wage.
Some of the laws covering these protected activities include federal laws such as the No Fear Act, which is officially known as the Notification and Federal Employee Anti-discrimination and Retaliation Act of 2002.
How to Handle Retaliatory Termination
To successful claim wrongful termination in this instance, you will need to show a clear connection between the termination and the protected activities.
Some state laws also require the employee to acknowledge that they were fully aware of the protected activity.
As with discrimination, discussed above, seek the help of an attorney when filing such a retaliatory termination suit.
Since the employer will often argue there were legal grounds for dismissal such as incompetence, the suit could involve a rigorous investigation process so the lawyer will come in handy to help you build your case.
Harassment hinders an employee’s work performance and could lead to forced resignation or being fired.
This is why both federal and state laws have strict provisions protecting employees against harassment or any wrongful termination arising from it.
Notably, sexual harassment is the most common type of harassment in the workplace. One in four women experiences sexual harassment in the workplace.
This remains an alarming number when you consider that only few sexual harassment victims will speak up. Psychologists note that this could be due to shame, denial, low self-esteem and fear of consequences (such as being fired) among others.
Other types of harassment include verbal harassment, physical harassment, supervisor harassment and co-worker harassment.
Due to the nature of these cases, harassment is often closely tied to retaliation, discrimination and hostile environment lawsuits.
BREACH OF CONTRACT OR BROKEN PROMISES
Although we have established that most people are at-will employees, the law provides that an employment contract can be verbal, written, expressed or implied.
This opens up a fresh category that protects employees from wrongful termination.
For example, if your employer verbally promised long-term employment or open chances of promotion but ends up firing you, you can sue them.
This could even be implied promises such as a verbal commitment uttered while awarding you best employee of the year at the office party, or even a simple statement like “Arnold, land that big client and I guarantee you a corner office by this time next year.”
Employment contracts contain termination clauses which vary from one employee to the other, even with employees within the same company.
The bottom line is that the employer should not terminate your contract without good cause. In the event that they do so, they will naturally invoke illegal termination under breach of contract laws.
In some cases, the wrongful termination can involve false allegations which amount to defamation.
Either out of malice, anger or hurry to get rid of an employee, the employer could end up saying, implying or writing untrue information about the employee.
Here, in addition to the damage caused by wrongful termination, the employer soils your name and reputation which could have a very bad impact on your future career or other social circles.
As a result, you can sue for defamation and this will still be considered wrongful dismissal.
Ensure that you have direct or circumstantial evidence that the employer spoke or wrote unconfirmed or untrue information about you.
Whether or not the reasons for your dismissal were legit, it is illegal for the employer to ruin your reputation in the event of termination.
EMPLOYEE’S REFUSAL TO COMMIT AN ILLEGAL ACT
As an employee, you have the right to refuse to participate in illegal acts within your workplace. In the event that this happens and you are met with a dismissal letter, you can sue your employer.
This scenario is closely tied to retaliatory termination since the dismissal comes as a result of conflict between you and the employer.
As expected, it will be hard to prove this type of wrongful termination especially if you did not report the illegal activities to the relevant authorities.
WHAT TO DO IN CASE YOU ARE A VICTIM OF WRONGFUL TERMINATION?
Wrongful termination results in emotional, financial and physical stress among others.
It would be great for you to get help as soon as possible so that you can move on with your life. In this section, I’ll take you through the best way to ensure that happens.
Step 1: Talk to an Employment Attorney
As mentioned before, the first and most prudent course of action is to consult an employment attorney.
Preferably, you should consult an attorney in the state where you were dismissed since state laws vary and you would best be served by a professional in that state.
Step 2: Take Your Own Precautionary Measures
The importance of an attorney’s help in wrongful termination cases cannot be emphasized enough.
However, you can also take some measures to help the attorney build a strong case. Ideally, if you are reading this prior to your termination, this should be step one.
First, ensure that you get a copy of your personnel file.
Some terminations can be quite hasty and the employer can rush you out of the premises before you grab these but stand your ground since this is your right.
As you compile your file, assemble all communication between you and the company including emails, memos, awards, reprimands and letters.
Next, document the termination. This includes writing down all the events of the termination as soon as it happens since they are still fresh in your mind.
You should also file all the relevant paperwork received with regard to your dismissal. You can also talk to your former colleagues to gather as much information as you can about why you were fired especially if you were singled out.
All these will come in handy when building your case.
Step 3: Case Review
At this point, your attorney will start analyzing your case to determine its strength but it doesn’t hurt to stay in the know, right?
Basically, every relevant document here needs to be reviewed.
These include your employment contract (if available), employee handbook, union contract, and policy manual.
All these are necessary to determine what basis you have in your claim.
If it were up to the aggrieved party, they would rush to court or the authorities based on how hurt they feel for being fired.
Failing to carefully review your case could see the law end up favoring the employer since they took measures to protect themselves from such lawsuits; measures which are often unknown to you, the employee.
For example, a clause stating that you are employed at-will could weaken your case since the employer reserved the right to termination at any time with or without giving a reason.
Step 4: Filling Your Case
When it feels that you have sufficient grounds to file a claim, you can proceed to this next step.
State and federal laws put time limits on how long a former employee should take to claim wrongful termination.
Begin by filing an administrative claim with the Equal Employment Opportunity Commission.
This should be done within 180 days of your termination. The EEOC will conduct its investigation and determine whether your case has merit.
In some cases, the EEOC could proceed to file a lawsuit against your employer on your behalf. However, in most cases, the EEOC gives you the go-ahead to proceed with your suit by issuing a right-to-sue letter.
According to the EEOC Fiscal Year 2018 Enforcement and Litigation Data, there is a general increase in awareness and interest in its services among the public.
This is evidenced by increased emails, toll-free calls and office inquiries it received in the fiscal year 2018.
Taking up 51% of the 76, 418 cases they handled in 2018, retaliation was the most common type of discrimination in the workplace. It was closely followed by sexual harassment and disability discrimination.
Although these do not strictly pertain to wrongful termination, these numbers paint a clear picture of the high number of employees who now know their rights and are not afraid to speak up against illegal employment activities.
Step 5: To Settle Or Not To Settle?
You have heard endless cases of people who managed to walk away with millions of dollars as compensation for wrongful determination.
There some people who have even turned it into a money-minting business, which is very wrong.
On the extreme end, others never get any justice.
But monetary compensation is not always the goal of every victim of wrongful dismissal.
So your case might be extremely different from the next guy.
Before you even file the charge, you should have a clear reason why you are doing it.
While monetary compensation is the most common, some people just want a public apology or simply ensure that the company does not repeat its actions and no one else undergoes through the same pain.
With this in mind, here are the most common directions a wrongful termination case can take:
An out-of-court settlement is a good option when the employer meets your terms or offers a worthy compensation.
Here, your lawyer will advise you on what deal to take and which one you should walk away from.
You can also choose to avoid trial since it can get very costly for you, not to mention the added emotional distress involved.
The amount you can expect to get from the settlement will depend on your case.
Below is a breakdown of the amounts survey participants polled by Nolo received from wrongful termination settlements.
A mediator can also be called in to resolve the issue and avoid going to trial. Although the mediator will naturally be a neutral party who will not favor either side, it is advisable to involve your lawyer.
Notably, many wrongful dismissal cases do not make it to trial.
Once your attorney builds a strong case and presents your claim to the employer or their lawyer, depending on how strong your case is, a settlement offer can be made.
However, the defense attorney can also choose to argue that your case has no merit and the case could end in favor of the employer.
This is why the case review stage cannot be emphasized enough. If a settlement offer is made, the two lawyers will often engage in back and forth counter-offer until an agreement is reached.
When all else fails, you might have to put on your boxing gloves and proceed to trial.
This often happens when the defense attorney dismisses your claim yet your attorney knows that you have a strong case.
When the settlement offer is too low, your lawyer could also advise you to turn down and proceed to trial.
There is no telling what will happen at trial.
However, it is expected that the defense attorney will fight hard to win the case by digging into your work performance as well as your character and personal life.
All you can do at this point is stay strong, wait and brave it to the end.
Wrongful termination is illegal.
Fortunately, the law has several provisions that are meant to protect you against it.
Yet, sometimes, the termination can be lawful but still feel wrong to you as the victim. Getting fired hurts.
But remember, whether or not you sue, settle or go to trial, the most important part is that you move past it.
Get on with your career and your life as strongly as Walt Disney and other great people who were fired at some point in their careers.
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