How to Sue for Wrongful Termination

Wrongful termination refers to being terminated from employment for an illegal reason. Illegal reasons include, but may not be limited to:

• Firing someone because they belong to a protected class (race, gender, age, etc.);
• Firing an employee as retaliation for their involvement in a protected activity;
• Any reason that violates other federal anti-discrimination laws; and/or
• Contractual breaches.

A common example of wrongful termination involves the employer breaching an employment contract. An employment contract is an agreement between the employer and the employee which outlines specific employment details, such as pay and expectations. If the contract, whether written or implied, specifies that the employment was to be continual, being fired could be considered wrongful termination.

What Are Some Common Types of Wrongful Termination?

The most common type of wrongful termination occurs because of an employer discriminating against the employee. Employees who are considered to belong to a protected class are protected from discriminatory laws, practices, and policies; these protections come from both federal and state laws. A person may not be discriminated against based on the following characteristics:

• Their race, national origin, and/or ethnicity;
• Their gender and/or their sexuality;
• Their religion, religious beliefs, or lack thereof;
• Disability, including pregnancy; and
• 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.

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.

How Can I Sue 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.

How Do You Prove 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.

Do I Need to Hire an Attorney for Help 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.