When Can You Sue for Wrongful Termination?

People are terminated from work for a variety of reasons, most of them legal and probably deserved. But there are a number of situations where being fired is not deserved and not legal. If you feel you were wrongfully terminated, you may have cause for legal action against your employer. Here is some information that may help you decide.

Most employment is at-will

Most employers and employees in the U.S. agree to an at-will arrangement where either party may terminate the agreement at any time and for any reason. That means your employer may decide to let you go for any legal reason or no reason at all.

If you had a contract with your employer, that would be different. An employer cannot fire an employee under contract if such firing breaches the contract, nor can the employee be fired for any illegal reason.

But in an “at-will” situation, there is no contract to honor. Most employment falls under this at-will arrangement. And many employers state this understanding in their handbooks. Termination of employees is generally done “for cause” and this cause is usually explained to employees and documented by the employer.

But similar to contract agreements, an employer cannot fire an at-will employee for illegal reasons. Knowing these situations may help you decide if you have a case for bringing a lawsuit against your employer for terminating you.

Wrongful termination reasons

Among the many reasons for wrongful termination are the following:

• Firing breaches a contract
• Discrimination on the basis of gender, age, disability, national origin, pregnancy, race, religion, or sexual orientation
• Firing as a form of sexual harassment
• In violation of labor laws
• Retaliation for a complaint against the employer (whistle-blowing)
• Failing to follow company policy
• Differential treatment
• Forming or being part of a union

Employment contracts are normally compiled with provisions that state responsibilities and are usually written. But the law recognizes oral contracts as valid also. You may have been promised you wouldn’t be fired except for performance-based reasons or may have promised you a long tenure. If you were fired for non-performance-based reasons, you may have a case.

If you were terminated due to stated performance problems, your attorney will want to find out whether this was differential treatment and if other employees were terminated for the same stated performance problems.

Your attorney will also want to know if the stated reason for termination is false and really just a pretext or coverup for an unlawful reason.

If you made a complaint in good faith regarding an illegal activity or safety hazard at work, and you were fired or think you will be fired, an attorney can advise you of your rights against retaliation.

If you took time off to serve jury duty, perform military duty, or take medical leave, you are also protected from wrongful termination for those actions.

Many companies have handbooks that spell out policies for poor performance or disciplinary problems. Often, there are a specified series of steps that must be followed before an employee can be fired, like documented evidence and issued warnings.

In the case of performance issues, usually, an employee is given a performance review of some kind with required improvement communicated to the employee. If a policy like that is stated for a given company and not followed, you might have a case for wrongful termination.

An attorney can help

An attorney will work with you to evaluate your case by reviewing any employer documentation that is available including your employee file with performance information and stated reasons for your termination.

Performance reviews and comments along with other company employment records and documented policies will be helpful in determining whether you were given differential treatment or terminated without regard for labor laws or those company policies.

If your past performance reviews were positive but you were still fired for poor performance, your employer may be covering up for an unlawful termination. If there were witnesses to your positive performance and termination, your attorney will want to know about them or any other evidence you can present.

Your attorney will also consider any financial loss or other damages you suffered as a result of the unlawful termination. Those can include lost pay, lost benefits, possible damages from emotional distress or possible punitive damages.

There are other reasons you may want to hire an employment attorney. You may want to negotiate a better severance package, ask for (or demand) a settlement, or file administrative charges.

It’s important to note that in many severance offers, employers require their employees to sign a waiver agreement that releases the employer from future claims and prevents the employee from suing the employer. If you face this situation, an attorney can advise you what’s in your best interests. Once you sign the form, it is difficult to challenge the terms.

It’s also important to know that you can be fired for doing something outside of work that violates your company’s business code of ethics. This might include things you post on social media. If the company considers your action damaging to its business, it may fire you.

However, some states including California have passed laws which prohibit discrimination against an employee for participation in legal activities outside work hours. As long as the activity does not conflict with the employer’s business, the activity should be permitted.

Steps to help protect yourself

There are some things you can do to help protect yourself in the event of being fired. You should document the circumstances under which you were fired including who talked to you, what they said, and any accompanying conduct that occurred by both parties. You can use emails to preserve a record but make sure to have backups or copies.

You can also keep personal records of performance reviews, commendations, conversations of approval, or salary changes. Record the date, time, location, comments, and people present.

You can also ask to see your personnel file which may include documents that you added along the way showing any self-reviews or achievements made. Most states require employers to make personnel files available upon request.

Also, acquire any documents or materials that may be relevant such as company policy statements or handbooks, HR memos, company brochures, orientation materials, or any public recognition or written evaluations of your work.

Be sure that whatever you keep or acquire for defense purposes is legally obtained and is not company confidential or for internal use only. Your employer can challenge these materials. In any of these situations, a qualified attorney will advise you on what you should do.