I get a lot of calls for consultations asking me if the employee can sue their employer for firing them. The employee will cite that it was ‘unfair’, that the employer ‘is mean’ or just likes other employees more. However, employers can usually fire employees as they see fit. It does not have to be fair. The employer can be completely unreasonable and that’s perfectly legal.
Types of Wrongful Termination
The good news is that there are laws that protect employees from claims of ‘wrong termination’ and when it is absolutely NOT legal for an employer to fire an employee. Wrongful termination claims are:
- Illegal discrimination. This is when an employee is fired for her race, age, color, genetic information, religion, sex, sexual orientation, national origin, family status, disability, and sometimes veteran status (if an employer has 15 or more employees). Those are the federal protected classes that are universal for all states. Some states and even cities have additional protected classes.
- When employee asked to commit an illegal act. If an employee refuses to comply with orders to commit an illegal act and is fired for doing so, this is wrongful termination. Illegal acts include fraud, violating industry-specific laws and codes, and violating other employees’ rights such as refusing to pay for overtime.
- Whistleblowing. Whistleblowing is when an employee witnesses an employer engaging in illegal acts and reports the employer to the government agency. The employer then fires or otherwise retaliates (such as demoting) against the employee.
- Retaliation. If an employer demotes, fires, or decreases pay of an employee who exercises his legal rights, this is considered retaliation. For example, if an employee requests accommodations under the Americans with Disabilities Act and is fired, this is retaliation. If an employee demands her rightfully owed overtime pay, this is a form of retaliation.
In addition to the above forms wrongful termination, there are contract-based ways to illegally fire an employee. They are:
- Contract-based claims. If an employee is NOT an at-will employee and is considered a ‘for cause’ employee and the employer fires the employee without good cause, this is a form of wrongful termination. You must be aware, however, that this is an exception and the rule is that employees are at-will employees.
- When an employer does not follow company guidelines for firing. Some employers have an employee handbook that details the procedure of firing employees. For example, an employer may require that an employee gets ‘three strikes.’ If an employer follows this procedure consistently with employees but fails to do so with a specific employee, this may be a violation of the company’s procedures.
What To Do if You Are Fired Illegally
If you are fired illegally, there are some steps you can take before even contacting a lawyer.
- Be careful what you sign after termination. Employers will often give terminated employees a document to sign called a ‘severance agreement.’ This typically requires that the employer waive her rights to sue for certain claims and can make your case harder, if not impossible, to pursue.
- Keep your email exchanges. It is tempting to delete painful memories (and therefore, emails) but if you have access to any emails, download them or find a way to hold on to them as they may serve as evidence.
- Get a hold of your contract or employee handbook. You can ask your human resources to give you a copy so you have it before meeting with an employee.
- Try to get a hold of contact information of previous employees who may have had a similar problem. You are probably not the only employee that was fired illegally. If you can track down previous employees who may have been let go illegally, find them. Current employees will be hesitant to speak the truth against their employers for fear of losing their job and are not always the most reliable witnesses.