Wrongful termination, or unlawful termination, is a tenant of employment law. Wrongful termination occurs when an employer terminates an employee for an unauthorized or illegal reason.
Wrongful termination may also be called wrongful discharge. It constitutes a large percentage of the employment lawsuits which are filed each year.
Wrongful termination may involve numerous legal issues, including:
- Retaliatory discharge;
- Breach of contract;
- Leave; and
Retaliatory discharge occurs when an employer terminates an employee who filed a complaint against the company, such as a whistleblower. Employees are legally entitled to file claims against their employers without facing termination for doing so. Activities by an employee which may be protected include:
- Reporting harassment or discrimination in the workplace;
- Leaving work for public policy reasons, such as attending mandatory jury duty;
- Filing a complaint with the Equal Opportunity Employment Commission (EEOC); and
- Participating in mandatory investigations, such as wage violations or other lawsuits.
An employee’s termination may be considered unlawful when it occurs for a discriminatory reason. For example, if an employer terminates only employees who are above a certain age, the employees may have a claim for wrongful termination.
In some instances, an employee and an employer may enter into an employment contract. If the termination of that employee breaches the terms of the employment agreement, it may be wrongful termination.
Pursuant to both federal laws and state laws, employees are entitled to take family, medical, and personal leaves of absence. Employees cannot be terminated for taking a valid leave.
In some situations, employees may be terminated for reasons which are related to fraud, specifically, fraudulent concealment. In the context of employment law, fraudulent concealment occurs when an employer intentionally misleads an employee regarding the requirements of a job.
An example of fraudulent concealment may occur when an employee resigns for their previous job to accept what appears to be a better position with a new company. If the new employer intentionally does not inform the employee that they will be terminating all employees in two weeks in order to get that employee to accept the position, the employee may have a claim for fraudulent concealment.
In addition, unlawful termination may result when an employer terminates an employee who refuses to comply with instructions which are illegal. This may include illegal activities, such as disregarding safety regulations for a particular job, or even a more serious crime, such as committing a felony such as larceny or tax evasion.
A wrongful discharge may also occur when an employer violates their own policies during the process of terminating the employee. This may occur when the employer does not follow the proper procedures for terminating that employee.
What is Wrongful Termination In Violation of Public Policy?
An employer is not permitted to terminate an employee if that termination would violate public policy. Public policy may be violated when an employee is terminated by engaging in an activity which is protected by either a constitutional right or by a statute.
One of the most common types of termination which occurs in violation of public policy is when an employee is terminated for reporting alleged unlawful conduct in which the employer has engaged. The term for this protected activity is whistleblowing.
What Rights Does a Whistleblower Have?
There are federal laws which protect workers who report employers that are breaking the law. Employees who are whistleblowers are afforded immunity against retaliation and termination following reporting their employer to law enforcement because they are viewed as the eyes and ears of workplace safety as well as the witnesses to questionable behavior.
If an employee is terminated due to their whistleblowing, they may have the right to sue their employer.
When Does a Wrongful Termination Violate Public Policy?
As previously noted, a wrongful termination occurs when an employer terminates an employee in a manner which is illegal. Wrongful termination can be classified into different types, including:
- Violation of statutes: The termination of an employee involved a violation of a law or statute, such as discrimination or retaliatory discharge against the employee;
- Breach of contract: The employee’s termination was based upon a breach of a provision or provisions which are contained in an employment contract, such as terms regarding wages or hiring;
- Violation of public policy: The employee’s termination is wrongful because it violates public policy. For example, if the employee was terminated for refusing to participate in an illegal act;
- Retaliatory Termination: The employer terminated the employee because the employee engaged in a protected activity and was terminated in retaliation for engaging in the protected activity; and
- Whistleblowing: When an employee reports an employer’s unlawful conduct and is terminated.
An employee who is wrongfully terminated may be able to recover damages for their losses in connection with their termination. The employee may be able to:
- Recover their lost wages;
- Get their old position back; or
- Require the employer to adjust their employment policies.
How Can a Termination Violate Public Policy?
Public policy includes a set of social norms which most individuals would agree upon. It is akin to the concept of common sense. An example of public policy includes the concept that individuals should not be punished for exercising their legal rights.
Public policy is not something that is codified in laws or statutes. However, actions including wrongful termination can be considered illegal if they go against general principles of public policy.
Common examples of employee terminations which would violate public policy may include:
- Terminating an employee for exercising their legal rights, for example, the right to vote;
- Terminating an employee who has refused to commit an illegal act, for example, falsifying reports or submitting a fraudulent company tax document;
- Terminating an employee due to their reporting illegal misconduct that they observed in the company or business; and
- Termination of an employee for reporting an alleged unlawful conduct by employer, known as whistleblowing.
It is important to note that public policy standards may vary widely by region as well as according to the nature of the employment. Therefore, when a court is reviewing a wrongful termination claim that involves public policy, the court will typically do a case-by-case analysis in order to determine whether a violation occurred.
What are the Damages for Wrongful Termination?
Wrongful termination claims must typically be investigated by a government agency prior to a private lawsuit being filed. If an investigating agency determines that the employer is in violation, there are possible remedies for wrongful termination, including:
- Restoring the employee to their previous employment position;
- Paying the employee lost wages;
- Making changes to employee handbooks and policies;
- Lost benefits;
- Attorney Fees; and
- Emotional Distress.
If a government investigation is unable to resolve the issue, an employee is usually permitted to file a civil lawsuit in order to obtain the remedies discussed above. In addition, if criminal charges are involved, an employer may be subject to additional penalties, including fines and/or jail time.
Do I Need a Lawyer?
Yes, it is essential to have the assistance of an wrongful termination attorney if you are involved in a dispute regarding employment termination. You may be able to obtain a remedy based upon principles of public policy.
It is important for you to contact your attorney as soon as possible. Your attorney can advise you regarding the various laws of your jurisdiction and how public policies are applied in your area, assist you with filing a lawsuit, and represent you in court.