Lose your job? Unfortunately, employment is normally “at-will” in America, meaning that most employees can be fired at any time, for any reason, or for no reason at all. While it’s not fair, employers in most states are allowed to fire employees without providing any justification or advance notice. But there’s a chance, albeit a slim chance, that your firing was illegal. In that case, you may have specific legal remedies at your disposal, including the right to file a wrongful termination lawsuit.
Most wrongful termination lawsuits are filed over employment discrimination. Federal and (most) state laws prohibit employers from firing employees because of certain protected characteristics. Where federal law is concerned, employers are barred from discriminating based on:
- perceived race
- national origin
- genetic information
Some states have passed even broader protections. In New York, for example, lawmakers have made it illegal to discriminate based on sexual orientation, gender identity, arrest records or convictions and marital status.
Breach Of Employment Contract
The second exception to America’s general at-will employment doctrine is breach of contract.
Contracts set the boundaries of the employment relationship, and some contracts contain important promises limiting an employer’s right to fire the contracted employee. As just one example, some contracts will contain a clause saying that the employer can only fire the employee for “good cause” or a select number of reasons specifically outlined in the contract.
If you have a contract like that, you may be in luck. You’re also probably in a union; nonunion workers rarely have the protection of a “good cause” provision, even workers with written contracts. One, you’re probably not an “at will” employee, which means your employer may not have the right to fire you for any reason, or no reason, at all. Second, the promises outlined in the contract may be enforceable in court. If you can prove that your employer fired you without good cause, you may be able to file an unlawful termination lawsuit, demanding to have your job reinstated or some other form of compensation.
Promises are important, especially where job security is concerned. In most cases, employers promise things, like guaranteed work for a period of time, by writing the promises down in a contract. Courts, however, also recognize the existence of oral contracts – promises made in speech.
Maybe your employer told you outright that she wouldn’t fire you for a specific period of time, without a good reason or unless you failed to meet performance standards. These spoken promises are called “oral assurances,” and if you can prove that one was made, you may have a case for wrongful termination. For obvious reasons, proving that your employer made oral assurances is difficult, but it’s not impossible.
Beyond oral contracts, courts also recognize implied contracts. These contracts aren’t written down, or even spoken out loud. Instead, the existence of an implied contract can be inferred by looking at the employer’s past practices, company policies and statements to employees. There’s no way to clinch a claim involving implied contracts, but here are two factors that can increase the likelihood of winning a lawsuit:
- company policies and employee handbooks – some companies have written policies that limit their right to fire employees at will. Requirements that outline a set of internal disciplinary procedures before firing becomes appropriate are one example.
- employment duration – employees have worked at the same company for an extended period of time, receiving regular promotions and positive performance reports, are more likely to have a viable argument about the existence of an implied contract.
Be aware that some states don’t recognize the existence of implied employment contracts, no matter how strong the implication. To find out where an implied contract argument may be able to circumvent at-will employment, visit the Bureau of Labor Statistics.
Good Faith & Fair Dealing
In a select number of states, courts have recognized that breaches of an implied covenant of good faith and fair dealing are legitimate exceptions to at-will employment. This exception can include firings that are malicious in some way or based on fraud, although state courts have interpreted the idea in very different ways.
One example would be making an employee’s life so miserable, through reassignments or transfers, that they quit without collecting severance pay. Misleading employees through false promises of pay or promotions, or playing-down the undesirable aspects of a job, are other examples.
Proving that you are fired through fraud can be especially difficult. Beyond demonstrating that your employer made false representations, you’ll have to prove that he or she intended to deceive you. Proving intention is always hard.
Public Policy Violations
Some reasons for firing people are just so unreasonable that, as a society, we’ve agreed to make them off-limits. Many state and federal laws have outlined employment actions that would be bad for society in general. It would be bad, for example, if you could get fired for taking time off to vote or serve on a jury. Very few people would vote, and the courts would have a hard time filling juries.
By classifying these unreasonable firings as violations of public policy, lawmakers are trying to promote behaviors that are good for society. That’s why whistle-blowing, reporting unlawful employer activities, is also included under this heading. Some states protect all whistle-blowers, no matter which laws were being violated. In other states, employees only receive protection in relation to reports of specific violations, like violations of labor laws or environmental regulations.
Exercising your legal rights can be placed under this category, too. Most courts agree that employers cannot fire employees for taking advantage of legally-enshrined remedies, like filing for workers comp.
Employers are prohibited from retaliating in any way against employees who have exercised their legally-protected rights. Filing a complaint over wage and hour violations, or pursuing an unpaid overtime lawsuit, are good examples.
The Civil Rights Act of 1964 also makes it illegal to retaliate against an employee for speaking up about discrimination, filing a charge related to discrimination or participating in an investigation or lawsuit over employment discrimination. This holds true even if the allegations of discrimination turn out to be unfounded, as long as they were made in good faith.
Do Employers Have To Give You A Reason?
In the majority of cases, employers don’t need a good reason to fire you. Nor do they have to give you a reason at all, expect in eight states where legislatures have passed laws that entitle discharged workers to “service letters.”
- Indiana – upon written request, employers are required to supply fired employees with service letters, truthfully stating for what cause, if any, the employee was fired. The requirement only applies to some companies, however. Employers that don’t require written recommendations or applications showing qualifications or experience for employment are exempted.
- Maine – discharged workers are entitled to a service letter, including reasons for their firing, upon written request. Employers have 15 days to respond to a request, or risk facing penalties.
- Minnesota – after being fired, workers in Minnesota have the right to request a service letter for up to 15 working days. A response with “truthful reason for termination” is required within 10 working days.
- Missouri – discharged employees can request a service letter within 1 year of being fired, but only have the right to a response if the company has 7 or more employees. The response, which must be sent within 45 days, must “truly state[…] for what cause, if any, [the] employee was discharged.” The right applies only to employees who spent at least 90 days on the job. Companies that violate the law can be sued in court for compensatory damages.
- Montana – workers have the right to know why they were fired, but must submit a written request to their former employer.
- Washington – upon written request, workers in Washington are entitled to truthful information on the cause of their discharge, which must be answered within 10 business days of request.
- Nevada – employees who worked over 60 days at a company are entitled to “a truthful statement of the reason for […] discharge”
- Nebraska – workers in Nebraska have the right to receive a service letter “truly stating the cause for which [the] employee was discharged” upon request
Georgia is the only state that requires service letters detailing the reasons for a discharge for all workers. After discharging an employee, employers must complete the state’s Form DOL-800, explaining why the employee was fired. Violate Georgia’s law and an employer faces misdemeanor charges, one year in jail and a $1,000 fine.