Unfair termination is a different name for wrongful termination, which occurs when an employee is fired illegally. Although many employees are "at-will" employees and can be fired or terminated at any time without cause, there are some important exceptions where an employee cannot be wrongfully terminated.

If an employee is fired for reporting wrongful activities or for filing a workers compensation claim, these can constitute unfair termination. Although the firing may not strictly be “illegal,” it is a violation of public policy, which means that it is bad for society as a whole. In those cases, courts have the power to hold the employer liable.

What are Examples of Unfair Termination?

There are many instances when it becomes unfair and illegal when an employee is terminated from their employment:

  • Discrimination: When an employee is terminated because of their race, color, national origin, gender, religion, age, disability, pregnancy.
  • Retaliation: When an employee is terminated because they filed a complaint against the employer with the Equal Employment Opportunity Commission.
  • Breach of Good Faith and Fair Dealing: Employer acted unfairly toward employee and fabricating reasons to fire them.
  • Violation of Public Policy: Employer firing an employee because they are part of a recognized group or political party.
  • Whistle Blowing Activities: Employer firing an employee that complain that their employer broke any law, regulation, or ordinance at all.
  • Family or Medical Leave: Employer firing an employee who takes time off for reasons listed in the Family and Medical Leave Act.

What’s the Difference between a At-Will Employee vs Just-Cause Employment?

The type of employment determines how and for what reasons an employer can fire an employee. There are two general types of employment: “at-will” and “just cause.”

  • At-Will Employee: At-will employment means that an employee can quit at any time, but the employer can also fire the employee at any time and for any legal reason (or no reason at all).
  • Just Cause Employment: Just cause employment usually requires terms that provide a guarantee to the employee that they will only be fired if there is a good reason. 
    • The just-cause provision does not necessarily have to be within an employee’s employment contract. Often this protection exists provided that just-cause firings are demanded according to company policy (e.g. in the employee manual).

Exceptions to Firing At-Will Employees

At-will employees can generally be fired for any legal reason, however, there are several illegal justifications for firing an employee that can give cause for a wrongful termination lawsuit:

  • Discrimination: Employers cannot fire an employee based on race, nationality, color, religion, gender, age, or disability. Employers can lawfully terminate employees for other reasons, so long as it is applied equally to all employees.
  • Retaliation: An employer cannot terminate employees for reporting to federal or state agencies about employment law violations.
  • Illegal Acts: An employer cannot fire an employee if the employee refuses to perform an illegal act.
  • Family or Medical Leave: Employers cannot fire an employee who takes time off for reasons listed in the Family and Medical Leave Act

What is Constructive Dismissal?

An employer cannot use tools such as demotion, harassment, unjustified pay cuts, or poor working conditions to force you to quit a job. In some cases, these actions may be justified due to downsizing, moving to a new facility, or eliminating certain positions.

But if these actions are unjustified, or motivated by the illegal justifications listed above, this could give rise to a wrongful termination action. Remember, harassment is never justified, as there is a difference from harassment and criticism for poor work performance.

What If My Employer Breached My Employment Contract?

An employee who has been terminated in breach of an employment contract may bring a claim for breach of contract against the employer. Even some at-will employees can bring a claim against an employee who has given an employee an implied employment contract. An implied employment contract exists when the employer through his words or actions promises continued employment to the employee and the employee relies on this promise.

Some employees have written or oral contracts, which guarantee that they will not be fired except for certain reasons. If the employer fires the employee for a reason not stated in the contract, the employee can sue the employer for breach of contract.

If this occurs the employee can recover the money that was owed under the remaining term of the contract, but has the duty to mitigate his or her damages by looking for another job. In a breach of contract case, the employee cannot sue for pain and suffering or punitive damages. The employee can only sue and try to recover attorneys’ fees and costs if the employment contract allows it.

What are the Remedies for Unfair Termination?

If you bring a claim against your employer for being unfairly terminated and the lawsuit is successful, you can be rewarded certain equitable remedies. An equitable remedy will be something like:

  • Reinstatement: Reinstated to your job if you want to return to your previous job
  • Injunction: Injunction against the employer to prevent employer from taking action
  • Compensation: Compensation for any loss of pay or benefits
  • “Make-Whole”: for the employee it can mean transferring, promoting, increasing the wage, or clearing the employee’s personnel file of an wrongs.
  • Out of Pocket Expenses: Compensation for any expenses or costs for searching for another job or directly caused by unfair termination
  • Front Pay: Compensation for lost wages while trying to find another job
  • Pain and Suffering: Compensation for any mental anguish or emotional turmoil, decrease in quality of life caused by unfair termination

While the employee can return to their position, they may also receive a promotion, a transfer, a wage increase, etc. Ultimately, the goal for would be to return the employee to the position as if they were never fired. If the employee was on track for a raise, a promotion, etc. but lost it due to the unfair termination, then the employee will have the right to return to their position with the change.

Can a Lawyer Help You with Your Unfair Termination?

If you suspect that your employer had terminated you unfairly, you should contact and experienced employment attorney. A skilled attorney can help you evaluate the terms of your employment and termination to determine if you have a claim for wrongful termination. In addition, an employment attorney can interview witnesses, gather evidence, negotiate with your former employer on your behalf, and represent you in court.