April 27, 2016
If you've been fired from your job, how do you know if the termination was legal or illegal (called "wrongful termination")? Most employment is "at will," which means an employee may be fired at any time and for any reason or for no reason at all (as long as the reason is not illegal). But there are some important exceptions to the at-will rule—and legal remedies—that may help you keep your job or sue your former employer for wrongful termination.
If you have a written contract or other statement that promises you job security, you have a strong argument that you are not an at-will employee. For example, you may have an employment contract stating that you can only be fired with good cause or for reasons stated in the contract. Or, you may have an offer letter or other written document that makes promises about your continued employment. If so, you might be able to enforce those promises in court. For help determining whether you were an at-will employee, see Nolo's article Employment at Will: What Does It Mean?.
The existence of an implied employment contract—an agreement based on things your employer said and did—is another exception to the at-will rule. This can be difficult to prove because most employers are very careful not to make promises of continued employment. But implied contracts have been found where employers promised "permanent employment" or employment for a specific period of time or where employers set forth specific forms of progressive discipline in an employee manual.
In deciding whether an implied employment contract exists, courts look at a number of things, including:
If your employer acted unfairly, you may have a claim for a breach of a duty of good faith and fair dealing. Courts have found that employers breached the duty of good faith and fair dealing by:
Some courts don't recognize the "good faith and fair dealing" exception to at-will employment. And some states require that a valid employment contract exists before employees can sue for a breach of good faith and fair dealing.
It is illegal to violate public policy when firing a worker—that is, to fire for reasons that society recognizes as illegitimate grounds for termination.
Before a wrongful termination claim based on a violation of public policy will be allowed, most courts require that there be some specific law setting out the policy. Many state and federal laws have specified employment-related actions that clearly violate public policy, such as firing an employee for:
Some states also protect employees from being fired for very specific reasons, like service as an election officer or volunteer firefighter. Some courts have also held that employers cannot fire you because you took advantage of a legal remedy or exercised a legal right—such as filing a workers' compensation claim or reporting a violation of the Occupational Safety and Health Act (OSHA).
Employers may not fire even at-will employees for illegal reasons, and discrimination is illegal. If you believe you were fired because of your race, color, national origin, gender, religion, age, disability, pregnancy, or genetic information, you should talk to a lawyer right away. There are strict time limits and rules that apply to discrimination claims; for example, you must file a complaint of discrimination with a state or federal agency before you may sue your employer in court. For more information on these types of claims, see Wrongful Termination: Discrimination and Harassment.
Employers are forbidden from retaliating against employees who have engaged in certain legally protected activities. To show that you lost your job as a result of your employer's retaliation, you must prove all of the following:
For more information on what constitutes retaliation, see Nolo's article Workplace Retaliation: What Are Your Rights?
In extreme cases, an employer's actions when firing a worker are so devious and wrong that they rise to the level of fraud. Fraud is commonly found in the recruiting process (where promises are made and broken) or in the final stages of employment (such as when an employee is induced to resign).
To prove that your job loss came about through fraud, you must show all of the following:
The hardest part of proving fraud is showing that the employer acted badly on purpose, in an intentional effort to trick you. That requires good documentation of how, when, to whom, and by what means the false representations were made.
A lawsuit for defamation is meant to protect a person's reputation and good standing in the community. To prove that defamation was a part of your job loss, you must show that—in the process of terminating your employment or subsequently providing references—your former employer made false and malicious statements about you that harmed your chances of finding a new job.
To sue for defamation, you must usually show that your former employer:
To win a case of defamation, you must prove that the hurtful words were more than petty watercooler gossip. True defamation must be factual information, and it must be false. For more information, see Nolo's article Defamation Law Made Simple.
Whistle-blowing laws protect employees who report activities that are unlawful or harm the public interest. Some states protect whistle-blowers who complain that their employer broke any law, regulation, or ordinance at all. Other states give employees whistle-blower protection only when they report that their employer broke certain laws, such as environmental regulations or labor laws.
For more information about whistle-blowing, visit the National Whistleblowers Center at www.whistleblowers.org or The U.S. Department of Labor's Office of the Whistleblower Protection Program at www.osha.gov/dep/oia/whistleblower/.