What to do if you think you've been wrongfully terminated from your job?

Written by
Rebecca Smith

Published
May 29, 2020

May 29, 2020 • by Rebecca Smith

With the notable exception of Montana, states in the U.S. follow a principle of at-will employment. Under this rule, employers and employees can end the employment relationship at any time and for any reason. This means that your employer can terminate you at any time and for nearly any reason. It also means that you can quit your job whenever you want. However, there are some important exceptions to this general rule. Employers cannot fire workers for discriminatory reasons, in violation of public policy, in retaliation for the employees engaging in protected activities, or in violation of employment contracts. In some cases, layoffs can also constitute wrongful terminations. When an employer terminates an employee for a prohibited purpose, the terminated worker may be entitled to recover damages through a wrongful termination action.

Wrongful termination for a discriminatory purpose


While employers may fire people for almost any reason, they cannot do so if their reasons are discriminatory. According to employment law attorney Steven M. Sweat, federal and state laws prohibit employers from discriminating against applicants and employees based on their protected characteristics in all aspects of the employment relationship from recruiting, hiring, and interviewing to compensation, bonuses, terminations, and layoffs. While some states protect additional categories of people, the federally protected statuses include race, color, national origin, gender, religion, disability, age if 40 or older, and pregnancy. If your employer fires you for a discriminatory purpose, your termination is illegal.

Wrongful termination in violation of public policy


Public policies are social norms to which most people agree. Public policies are not included in statutes, but a termination in violation of public policy may be considered to be unlawful. Some examples of terminating an employee in violation of public policy include firing someone for exercising his or her legal rights such as the right to vote, firing someone who refused to do something illegal like falsifying a financial report, firing someone for performing military duty, and other similar prohibited reasons.

The standards of public policy can vary widely based on the type of employment and the location of the job. This means that courts will normally analyze wrongful termination claims based on violations of public policy on a case-by-case basis.

Wrongful termination in retaliation


Some employers terminate employees in retaliation after the employees have engaged in protected activities. For example, if you are fired because you filed a discrimination or sexual harassment complaint, it is a wrongful termination even if your complaint was not found to be warranted. Employers may also not retaliate against eligible workers for taking time off from work to take care of their serious medical conditions or the serious medical conditions of their family members under the Family and Medical Leave Act.

Under this law, employees who work for companies with 50 or more employees who work within 75 miles of each other are eligible to take 12 weeks of unpaid family or medical leave each year for their medical conditions or the conditions of their immediate family members. However, they must provide as much notice as possible of their need to take FMLA leave. If your employer fired you because you took leave under the FMLA, the termination is unlawful.

There are also whistleblower protections contained in several state and federal laws. Under these laws, employers are prohibited from retaliating against workers who report the unlawful conduct of their employers to state or federal agencies. For example, if an employee reports that his or her employer has engaged in a massive fraud against the government, the employee can file a whistleblower or qui tam action against the employer. The employer will be prohibited from taking adverse job actions against the employee because of whistleblowing.

Another example of retaliatory discharge occurs when an employer fires a worker because he or she participated in an investigation of the employer. For example, if the Occupational Safety and Health Administration is investigating alleged safety violations at a company, it is illegal for the employer to fire an employee for providing information to the investigator.

Wrongful termination in violation of an employment contract


Most workers do not work under written employment contracts and are instead employed at-will. However, when a contract exists, an employer must follow the provisions contained within it, including any provisions that define the types of actions and procedures that are required for ending the employer-employee relationship. If an employee is terminated in a way that does not conform to the contractual provisions, he or he may have grounds to file a wrongful termination claim against the employer.

In some cases, an employee handbook or policy and procedure manual may be deemed to form an employment contract. For example, if an employee handbook specifies that the employer must go through a system of warnings and reprimands before the employees can be fired, a fired worker might have grounds for a wrongful termination claim if the employer did not follow the defined termination protocol.

Oral contracts are also enforceable, but they may be more difficult to prove. For example, if your supervisor promised that your job is protected and that you will not be fired for anything other than good cause, you might be able to pursue a wrongful termination claim if your employer fired you despite what you were promised.

Collective bargaining agreements are negotiated contracts between unions and companies. Many CBAs include provisions for how a union member's employment might be terminated. Workers whose jobs are threatened normally have the right to a hearing at which they can be represented by a union representative. If an employer fires a worker in violation of a collective bargaining agreement, the termination is wrongful.

Layoffs as wrongful terminations


While being laid off is technically considered to be a temporary suspension of employment that is unrelated to your performance on the job, there are some situations under which a layoff can be considered to be a wrongful termination. There are a couple of ways that a layoff might be a wrongful termination in disguise. For example, if an employer has a legitimate, economic reason for conducting layoffs but includes a specific employee in the group that is being laid off for prohibited reasons, it may be illegal. For example, if the employer decided to lay off a worker because he or she has a disability for which the employer does not want to provide reasonable accommodations that would not present an undue hardship, the employee may have grounds to file a wrongful termination claim.

Layoffs that disproportionately impact certain protected groups may also constitute wrongful terminations. For example, if an employer lays off all of the Hispanic workers at a job site while retaining all of the white employees, the layoffs will likely be considered to be wrongful terminations. Even if an employer uses a neutral selection process for laying workers off, the layoffs may be unlawful if they desperately impact members of a specific protected group. In this situation, the employers may not have chosen who to lay off based on a discriminatory reason. However, the selection criteria that were used may have resulted in a large and disproportionate impact on members of the protected group.

What to do if you think you have been wrongfully terminated


While most people are employed at-will in the U.S. and can be fired at any time from their jobs, the reasons for the terminations must not be for prohibited purposes. When workers lose their jobs for one of the previously described reasons, they may have grounds to file wrongful termination claims against their former employers. People should talk to employment law attorneys if they believe that they have been wrongfully terminated. A lawyer might help to file a formal complaint and secure damages to make the wrongfully terminated worker financially whole.