Wrongful termination can also be referred to as wrongful discharge, and is a legal circumstance in which an employee’s termination breaches one or more of the terms of the contract of employment. For the termination to be wrongful, it must be illegal, such as the firing being based on a person’s race, as opposed to their job performance.
Discriminatory firing is the most common form of wrongful termination. Federal law provides that employees may not be terminated or penalized on the basis of their race, color, national origin, sex, religion, disability, pregnancy, or age. Additionally, several states prohibit employment discrimination based on sexual orientation, as well as gender identity.
State laws vary on the rules when it comes to employer and employee relations, but most states have enacted at-will employment as a way of reducing wrongful termination. At-will employment refers to the concept that employment may be terminated at the will of the employer.
This means that there does not need to be a “good reason” for the employer to fire an employee. There is no requirement to provide advance notice of the termination, nor is there a requirement for fair procedures. The only requirement is that the firing be legal, and not for improper purpose.
At-will employment can prove to be a big obstacle when filing a termination claim; however, there are exceptions:
- Public Policy: It is considered wrongful termination if the employer fires the employee for reasons that are protected by public policy, or federal or state law. Whistleblowing is one such example. If an employee is terminated after reporting their employer, this would be considered wrongful termination; or
- Implied Contract: An implied contract occurs when there is no physical, written contract between the parties, but the courts have determined that a contract exists based on the conduct of the parties, or the surrounding circumstances. Thus, if an employee was employed under an implied contract, they may be entitled to compensation if the company procedure for firing employees was not followed correctly.
Your first step should be contacting your employer’s human resources department. If this doesn’t resolve the issue, contacting the EEOC and filing a complaint may be your next step. The Equal Employment Opportunity Commission exists to combat discrimination in the workplace. They may conduct an investigation and issue a remedy; if not, you may proceed to file a civil lawsuit.
It is important to gather as much information as you can before filing a complaint with the EEOC. This includes documents, hiring and firing forms, pay stubs, written witness statements, and any other items that will support your claim. A written statement that subjectively accounts for for your termination, from beginning to end, may be another helpful document.
Generally, you must contact an EEOC counselor within 45 days of the incident in question. If after thirty days the issue is not resolved, you will then need to file a formal complaint with an EEOC office, within 180 days of the termination.
This is where the EEOC will conduct their investigation and attempt to resolve the problem; if the plaintiff does not agree, they may then file a civil lawsuit. Additionally, you may file the civil lawsuit if the EEOC does not require the employer to remedy the issue and you feel that is a mistake.
It is very important to be clear and concise when discussing your wrongful termination. In addition to gathering all supporting evidence beforehand, having your answers to the following questions could help you prepare for the process:
- Were you discriminated against? This would include an employer violating any protected classes under the Civil Rights Act of 1964;
- Did you have an employment contract? If you were not an at-will employee, be sure to provide your attorney with your employment contract. What makes a termination wrongful, if not based on discrimination, is a breach of an employment contract;
- Was your termination in retaliation? If your employment termination was in retaliation to your actions, such as whistleblowing, it would be considered wrongful;
- Were you terminated while on medical or military leave? The FMLA provides protections for those on medical leave, as well as military leave; or
- Do you have a Right to Sue letter? The Right to Sue letter is provided by the EEOC after you have filed a complaint with the commission.
These are just a few examples of the questions you may be asked regarding your wrongful termination claim. Once again, it is imperative to have ample documentation and supporting evidence to your claim.
If a wrongful termination lawsuit is successful, the employee is generally awarded damages equivalent to lost wages, lost benefits, and attorney’s fees. Emotional distress and punitive damages, while a possibility, are much more difficult to obtain. This is because they require proof that the employer’s acts were especially reprehensible, in addition to the testimony of a mental health professional verifying that the employee suffered great harm.
A knowledgeable and skilled employment attorney can help you through a wrongful termination lawsuit, from start to finish. They will ensure you adhere to filing deadlines, present you with your best course of action, as well as represent you in court, if necessary.