Unlawful termination, also known as wrongful termination, occurs when an employer terminates an employee for a reason that is illegal. Most employees in the United States are considered to be at-will employees. This means that their employer is permitted to terminate their employment at any time and for any reason or, in some cases, for no reason at all.
An at-will employee is permitted to resign from their job at any time and for any reason. There are certain laws in place, however, which protect employees. If employers violate these laws when terminating an employee, it is considered wrongful termination.
What are Some Examples of Unlawful Termination?
There are numerous examples of unlawful termination. One of the most common is discrimination. Employees who belong to certain protected classes are protected from discriminatory policies, practice, and laws.
Employee protections come from both state and federal laws. Pursuant to these protections, an individual cannot be discriminated against based upon any of the following characteristics:
- Their race, national origin, and ethnicity;
- Their gender and their sexuality;
- Their religion, religious beliefs, or lack thereof;
- Disability, including pregnancy; and
- Veteran status.
If an employee is a member of the previously mentioned protected classes and is terminated due to that membership, it will be considered wrongful termination. Some examples of wrongful termination include, but are not limited to:
- Retaliation;
- Whistleblowing;
- Fraud;
- Defamation;
- Violations of public policy or other laws; and
- Family or medical leave.
Retaliation occurs when an employer terminates an employee after they engage in a legally protected activity. Examples may include terminating an employee after they have filed a complaint for discrimination, assault, or sexual harassment. Another example may include terminating an employee after they file a complaint with the Equal Employment Opportunity Commission (EEOC).
Whistleblowing is similar to retaliation. There are state whistleblower laws in place to protect an employee who reports their employer’s actions that are harmful to the public interest. If an employer terminates an employee for whistleblowing, it is considered wrongful termination.
Fraud occurs most often in the recruiting process. An employer may make a false representation to a prospective employee in order to persuade them to take a position. In order to prove fraud occurred, the individual would have to prove that the employer made a false claim with the intent to deceive them. In addition, the individual would have to show they relied on the false clam and suffered damages as a result of their reliance.
Defamation may occur during the process of terminating an employee or when an employer is subsequently asked for a reference. If a former employer makes a false or malicious statement regarding the employee, it may be difficult for them to find meaningful employment in the future.
An employer may not terminate an employee if doing so would violate public policy or other employment laws. A common example of this is that an employer is prohibited from terminating an employee for taking time off of work for jury duty.
If an employee has to take time off from work for extended medical leave, such as caring for a sick loved one or taking maternal or paternal leave, they are protected under the Family and Medical Leave Act (FMLA). This Act provides that an employee is entitled to unpaid leave and their job should be there when they return. If an employer terminates an employee solely because they have to take time off for a medical reason, it is considered wrongful termination.
Other examples of wrongful termination may include termination that violates an employment contract and an unauthorized forced termination, which is typically due to the employee’s age. An employment contract is an agreement entered into by the employer and the employee which outlines employment details, including job expectations and pay.
If the employment contract provides that the employment was to be continual, if the employee is fired, it may be considered wrongful termination. It is important to note that both federal and state employment laws provide guidelines for termination procedures for employers.
What Does not Constitute Wrongful Termination?
As previously discussed, at-will employment makes wrongful termination claims difficult to prove. Examples of situations which would not be considered wrongful termination may include, but are not limited to:
- Being fired for being repeatedly tardy, even if the employee had a good reason;
- The employer no longer needing the employee’s services;
- Being terminated during a probationary period in which it is understood that an employee could be terminated at any time; and,
- Being terminated without being provided with any notice of an impending termination.
Is My Employer Required to Give Me a Reason for the Termination?
Whether or not an employer is required to give an employee a reason for termination depends on the state in which they are employed.
In certain states, an employer must provide a reason why the employee is being fired while, in other states, an employer is not required to do so.
How Can I Contest Unlawful Termination?
There are several ways an employee can contest an unlawful termination. For example, if an employee has been wrongfully terminated, they may:
- File a claim with the human resources department in the company;
- File a complaint with an appropriate government agency, such as the EEOC for discrimination-based claims; and
- File a civil lawsuit in a court of law.
An employee who has been wrongfully terminated should contact their employer’s human resources department. If that department is unable to resolve the issue, the employee should then file a claim with the Equal Employment Opportunity Commission (EEOC) against the employer. The EEOC will conduct an investigation and issue a remedy.
Prior to filing a complaint with the EEOC, an individual should gather as must evidence as possible, including:
- Documents;
- Hiring and firing forms;
- Pay stubs;
- Written witness statements; and
- Any other supporting documents.
If the EEOC does not remedy the issue, an individual may receive a right to sue letter and be able to file a civil lawsuit. Usually, an employee must exhaust their available administrative remedies prior to filing a civil lawsuit.
This means that the employee must use avenues such as a government agency first. Only when these measures do not successfully produce a remedy can an individual file a lawsuit.
These restrictions, however, may vary depending on the legal cause of action. In some cases, a waiver of these requirements may be obtained.
What are the Legal Remedies for Unlawful Termination?
There are several legal remedies which may be available for an employee who is wrongfully terminated. These may include:
- Lost wages;
- Future wages;
- The cost of health insurance or other benefits the employee would have received;
- Attorney’s fees;
- Court costs;
- Injunctive relief or a court order which stops the employer from future discrimination;
- Emotional distress damages;
- Pain and suffering damages; and
- Punitive damages to punish the employee for their actions.
An employee who is part of a union must first exhaust all procedures which are set forth in their union agreement prior to taking legal action in a court of law.
Do I Need a Lawyer for help with Unlawful Termination Issues?
It is important to have the assistance of an wrongful termination lawyer for any unlawful termination issues you may be facing. Unlawful termination can be a difficult and stressful situation with serious consequences.
Your attorney can review your situation, determine if you were wrongfully terminated, and help you throughout the process. You do not have to wait until you are able to file a legal action in court to have an attorney’s assistance. The sooner you have an attorney’s help, the more likely you are to reach a satisfactory solution
