Losing your job can be a traumatic event. From one day to the next, your whole life can change. The sudden loss of income is devastating, especially in the face of monthly bills and other financial obligations. You may feel shocked, embarrassed, angry and helpless. Fortunately, most states have wrongful termination laws to protect employees.
While the issue of wrongful termination, also called wrongful discharge or wrongful dismissal, varies from state to state, there are some basics governing the rights of employees. Understanding how your state deals with wrongful termination cases is vital, especially if you’re considering an action for wrongful discharge against a former employer.
Virtually all 50 states follow the at-will doctrine of employment. The at-will doctrine states an employer can terminate you from your job at any time, for any reason, and without fear of legal consequences. There are five basic exceptions to at-will terminations.
Exceptions to the At-will Doctrine
1. Public policy
Terminating your employment because you filed a worker’s compensation claim, or because you refused to break a law, lie under oath, or refused to conspire to discriminate against a job applicant based on race, color, creed, age, or gender are all grounds for a wrongful termination suit. Sometimes, sexual preference is also a basis.
The public policy exception extends to whistleblowers but only when the whistle blowing concerns health and safety, state or federal law violations, illegal company activity, or unethical business practices concerning price gouging, anti-trust violations, and similarly heinous employer behavior.
Forty-three states have adopted the public policy exception. Those states that haven’t are Alabama, Florida, Georgia, Maine, Nebraska, New York, and Rhode Island.
2. Implied contract
Terminating your employment when there’s an implied contract between you and your employer is also grounds for a wrongful termination lawsuit. An implied contract of employment is an unwritten one.
You may have an implied contract with your employer if he or she made express representations about your job security, such as “If you leave your former job and come to work with us, you’ll have a job forever,” or “You’re doing a great job for us. If you move from your state to our corporate headquarters, we’ll make you our new district manager.”
A more common type of implied contract lies in the employee handbook. When employers tell employees their rights and duties of employment are in the company’s written handbook (also called employee guidelines, regulations, etc.), the employer has an implied legal duty not to terminate employment as long as the employee complies with his duties of employment as set out in the handbook. In these cases, the employee handbook serves as the implied contract of employment.
Implied contract representations are subject to interpretation by the courts. To decide if an implied contract of employment exists, the courts study the underlying circumstances of each case.
Thirty-seven states have adopted the implied contract exception. Those states that haven’t are Delaware, Florida, Georgia, Indiana, Louisiana, Massachusetts, Missouri, Montana, North Carolina, Pennsylvania, Rhode Island, Texas, and Virginia.
3. Covenant of good faith
Terminating employment when there’s a covenant (agreement) of good faith is also grounds for a wrongful termination suit. This is similar to the implied contract exception, but it goes further.
A covenant of good faith between an employee and employer exists when an employee performs his job duties properly, and in spite of the performance, the employer terminates his employment. The termination is usually sneaky, underhanded, or selfish and in violation of the good faith relationship between the employee and employer.
An excellent example of breach of covenant of good faith is an employee who has worked for his company for many years and is about to retire with full benefits. A few days before he is to retire, the company fires him. The underlying and underhanded reason is so the company won’t have to pay his full retirement benefits. This is clearly a breach (violation) of the covenant of good faith.
Eleven states have accepted the covenant in good faith doctrine. The rest have not. Those with the good faith covenant exception are Alabama, Alaska, Arizona, California, Delaware, Idaho, Massachusetts, Montana, Nevada, Utah, and Wyoming.
4. Written contract of employment
This exception normally applies to executives and upper management. When an employer offers a job to a prospect based on a written contract, the employer and the employee must abide by the employment contract’s terms. Only when an employer fires an employee in violation of the written terms does the discharged employee have a valid wrongful termination case. This exception applies in all 50 states.
5. Constructive discharge
This exception occurs when an employer purposely alters a specific employee’s working conditions and work environment to make it intolerable by any reasonable employee standard. As a result, the targeted employee has no choice but to resign.
Although the employer doesn’t expressly terminate the employee’s job, the employee’s resignation under the intolerable conditions is wrongful discharge, opening the employer up to a lawsuit. This exception won’t apply if the employee knew of the working conditions before beginning employment and then later complains about working conditions or work environment.
Equal Employment Opportunity Commission
If you believe your employer wrongfully discharged you from your employment, the lawsuit against your former employer is considered a breach of contract, whether written or implied.
If your discharge was due to discrimination based on race, color, creed, age, gender, or sexual preference, you may have two options. You may first proceed under a formal written complaint to the Equal Employment Opportunity Commission (EEOC), and then proceed by filing a separate lawsuit against the employer for breach of your employment contract.
Proving a Wrongful Termination Case
If you’re convinced your employer wrongfully fired you, you have to prove how and why. That requires evidence. Here’s where to begin:
1. Ask your employer to explain why he discharged you. Take notes, if you can. Ask your employer to put in writing the reasons he terminated your employment. If you live in any but the following states, you can also secretly record the conversation between you and your employer. You must make absolutely certain the recording is only between you and your employer and no other person. Otherwise, you’ve broken the law.
The 12 states that prohibit recording a conversation unless both parties consent are California, Connecticut, Delaware, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Pennsylvania, and Washington.
2. Ask to see your personnel file. Ask for copies of all documents, notes, and other information contained in it. While most employers don’t legally have to give you copies, it’s always good to try. If necessary, your lawyer can subpoena them later after your lawsuit is filed.
3. Create a journal. Write down the names and contact information of people involved in your termination. Include statements they made prior to your discharge regarding positive commendations for work you performed well.
Also, include references to other employees who your employer didn’t fire even though their job performances were similar to yours. This may determine whether there was a double standard in place. In addition, write down the names and contact information of fellow employees who might later serve as witnesses on your behalf.
4. Determine if your employer terminated you on illegal discriminatory grounds. If so, file an EEOC complaint and make copies of your application and any correspondence from the EEOC. Make sure you copy the “right to sue” letter you receive from the EEOC. The right to sue letter permits you to file a federal lawsuit based on discrimination and entitles you to go ahead with a separate state breach of contract case.
Be diligent because you only have 90 days after receipt of the right to sue letter to file your federal discrimination suit. You have much longer to file your breach of contract case. Check the statute of limitations for breach of contract in your state.
5. Review the exceptions to at-will employment policies. Each state will have slightly different policies, so determine whether your termination falls under one or more of the exceptions. If your company has an employee handbook, study the guidelines related to employee termination. Make copies of the pages dealing with employment termination policies.
Is there an appeals process? If so, did someone deny you access to it? Did your employer fire you because you filed a worker’s compensation case? Did your employer discharge you because you wouldn’t break a law, cheat, or otherwise commit unethical behavior?
6. Begin searching for another job. Although the law doesn’t require you to seek other employment before filing a breach of contract suit, wrongful termination suit, or EEOC claim, it’s very important to mitigate (lessen) your damages. In other words, it won’t impress a jury if you’re complaining about lost wages and blaming the loss on your former employer if you haven’t even tried to find a new job.
The Role of Attorneys
Although you can file an EEOC complaint and litigate it without legal representation, it’s always a good idea to hire an attorney. Because the EEOC is known for hesitating to accept discrimination wrongful termination cases without a history of a pattern of discrimination, you need to do a good deal of investigating. This is all but impossible without an attorney.
EEOC cases and separate breach of contract, wrongful discharge cases normally require a review of your employer’s records. If your employer is a chain or major corporation, your attorney will need to subpoena access to the corporation’s national records.
Whether your employer is a small company or a large multinational one, you should know they will fight hard. For an employer to admit to wrongful termination subjects them to thousands of dollars in damages. Furthermore, if you can show the termination was deliberate, malicious, or discriminatory, the employer will also be subject to a jury award of punitive damages. Punitive damages can reach into the hundreds of thousands of dollars.
Also, if an employer admits to wrongful termination of one employee, it opens the door to others who were recently terminated to file suit also, hoping to cash in on their cases, whether legitimate or not.
Attorneys can take court-ordered depositions (recorded, sworn statements) of employers, present and past employees, witnesses, and more. They can subpoena copies of intra-company emails, memoranda, letters, etc. In addition, your attorney can subpoena surveillance footage of the work area and discover complicity between and among your employer and others, whether employees, corporate heads, vendors, or others who may know of the circumstances surrounding your case.
Most importantly, your attorney can file a breach of contract, wrongful discharge lawsuit, and if necessary, proceed with a federal EEOC suit. If you’re serious and determined to pursue your wrongful discharge case, you must have an experienced attorney. Often, the mere filing of a lawsuit is enough to force a settlement. This probably won’t happen if you try to handle the case yourself.
Just as important is the issue of legal fees. Because EEOC violations and state breach of contract termination are forms of personal injury cases, attorneys can accept them on a contingency fee basis. This means you won’t have to pay your attorney a fee until and unless your case wins at trial or settles out of court.
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Visitor Questions on Wrongful Termination
Can I file a sexual discrimination lawsuit against my former boss? I was fired today, two weeks short of my 90 days. Although my boss informed me that I was a much better window specialist than the guy who worked there three years before me, he had to let me go. He wouldn’t give me a reason besides it being slow in the winter. He has... Read More >>
Terminated for speaking up for myself? I was hired as an ACTT Administrative Assistant. The office manager quit after the week that I was brought in, and I was asked to help with her job until they found a replacement. I was told that I would not have to do it long. I did it for three months. They informed me... Read More >>
Terminated based on discrimination? On Sept 18 I was given a Separation Agreement with a lump sum payment offer. I was told it was not based on performance by HR but based on the assessment of talent on the team. I am Black, female, age 62 and have the most seniority on the team. That same day I heard... Read More >>
Wrongly fired for lack of attendance? I was fired from my company because they stated I had consistent lack of attendance, but I have copies of my time sheets that prove otherwise. I do not have excessive absences, which I would think is what constitutes lack of attendance. I believe the termination was brought on by my PM not being thorough... Read More >>
Not paid out my accumulated vacation and sick days when terminated? I was working for a company for 7 1/2 years, and had taken the place of 4 department supervisors over those years. I was doing an outstanding job, getting raises yearly along with great evaluations from my employees and supervisor. I was making great money. I also had a lot of vacation and sick time... Read More >>
Wrongful termination and falsifying work documents… I was terminated by my district manager for no apparent reason, though random reasons were sighted on a Performance Improvement Plan. At the time my division departments were doing fine and up to company standard. My district manager put me on on Performance Improvement Plan that was never finalized, then brought in another sheet of... Read More >>
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Whistleblower termination… I was terminated as a performance supervisor for filing a complaint on a fellow supervisor for breaking the zero tolerance policy. He verbally assaulted me with a barrage of curse words for asking a simple question. The incident was witnessed by another supervisor and she told our manager what occurred. I wrote a report and... Read More >>
Fired for talking about illegal employment practices? I was in Florida (at will employee). While my employer did not have to give any reason at all, the COO of the company decided to tell me I was fired because one of their customers said I was talking about an employee at a conference. First of all, that is blatant lie. When I... Read More >>
Can I have an incorrect reason of termination changed? I have worked in the same medical practice for 23 years. I had the most seniority and benefits. When the physician’s wife took over managing the office, it was clear that she wanted me gone as I was the largest overhead there. Two weeks ago, she called me into his office and said that “someone... Read More >>
Fired after client incident? I worked as an RN in a Section 35 facility where a client eloped out the building and up into a dangerous location (in between what looked like grain vats with fire escape type ladder that she ran up). Five other staff followed the client out and stated to call 911. That made her a... Read More >>
Terminated for misconduct with no investigation? I worked for a school district. Records were changed using my online username. I denied being the one to make the changes when asked about it by my employer, and asked them to investigate what computer my username was logged into when the changes were made and they did not. I was told that because... Read More >>
Termination in North Carolina during 90 day probationary period? In October 2014, I gave my resignation at my current SC employer and relocated to North Carolina to accept a position with another company. During my employment with the NC employer, I was spoken to once about a month into my employment regarding some things that weren’t up to par (supervisor stated it wasn’t being... Read More >>
Given a choice to be fired or quit because of an overuse injury? This happened back in 2006, I know the statute of limitations in California is 2 years but I thought I’d ask anyways. I was just hanging out with some friends the other day and bad past job experiences came up in the conversation. I shared my story and my friends urged me to look into... Read More >>
Former boss lied to unemployment? After a coworker was promoted to be my supervisor, her attitude toward me changed. She assigned extra work she expected me to complete in a timely manner, which I always did. She gave me a larger workload than any of my coworkers, so I was working a lot of overtime and weekends to make sure... Read More >>
How long after I lose my job can I file for wrongful termination? I lost my job after working there 14 years because I called in sick in the same week my parents both died. I was a good worker and had been laid off and called back to work about a year before. Does this qualify as a valid wrongful termination claim? Is there a minimum length... Read More >>
Fired over schedule change? I asked a coworker to switch days off with me because I am going out of town. I asked the boss afterwards and she changed the time sheet so that I could clock in on the days I was supposed to have off, meaning that she cleared the changes as I took it. I went... Read More >>
RN wrongfully terminated from clinic? I’ve been an RN for almost 25 years, and have always received great performance evaluations and have never been written up. After I declined a position to be the clinic manager of an additional clinic, and after voicing my concerns re: my supervisor to hers, things began to change. Six days before I was supposed... Read More >>
Wrongful allegations of misconduct? My previous employer terminated me based on “misconduct” allegations. When I applied for Unemployment Benefits, the benefits were denied based on the employer’s allegation of misconduct. I filed my first appeal with the Employment Development Department (EDD) and the decision was rendered that I was being denied EDD benefits due to “misconduct.” I filed a... Read More >>
Can I sue the people involved in my wrongful termination personally? I was wrongfully terminated and I filed a complaint with the EEOC (Equal Employment Opportunity Commission). They investigated the case and agreed with me, giving me a “right to sue”. My question is, can I actually sue the people involved who signed off on my wrongful termination personally after I settle with the company? Meaning... Read More >>
Fired After One Day? I worked for a chain restaurant for a single day and I did everything they asked perfectly, but was still fired. I came into work exactly on time. I did all the dishes and swept the floor just like they asked. I’m so upset because I really needed the money for personal reasons. I went... Read More >>
Wrongful Termination Pain and Suffering… I am planning to negotiate with a former employer. I have to come up with a number for them for pain and suffering and loss of income because of wrongful termination. I was off work for 5 months, no one wanted to hire me because I was fired for something I did not do. What... Read More >>
Wrongful Termination from a Restaurant? After working for a well known upscale restaurant chain for 2 years I have been suspended indefinitely and most likely will be terminated after providing a shot glass to a 26 year old women without asking for ID. I didn’t do anything illegal. Does this constitute wrongful termination? Read More >>