“At-will” employment laws allow employers to terminate employees at any time, for any reason, unless there is an employment contract or collective bargaining agreement that says otherwise. That said, at-will employees are protected by a number of other employment laws that prohibit disciplinary action and termination when the motive is unlawful. Under the applicable federal, state, and local employment laws, wrongfully terminated employees have the right to file a complaint with the appropriate regulatory agency and to file a lawsuit. Whether you choose to submit a complaint, file a lawsuit, or both, you may be entitled to damages and restitution in a successful case.
If you believe you have been unlawfully terminated by your employer, consider whether your case falls under any of the following types of wrongful termination:
- Violation of written agreements
- Violation of implied agreements
- Violation of public policy
- Breach of good faith and fair dealing
Federal employment laws prohibit employers from disciplining or terminating an employee based on their race, color, religion, gender, national origin, pregnancy, disability, and age (over 40). Many states and local governments have adopted similar anti-discrimination laws to provide protection for employees at the state-level. Some states and local governments impose even stricter standards, additionally prohibiting discrimination based on an employee’s marital status, immigration status, sexual orientation, or gender identity.
Wrongful termination lawsuits that allege discrimination against a protected characteristic are perhaps the most common type of wrongful termination cases, though they’re notoriously difficult to prove. Most employers know that they can’t terminate an employee based on a protected characteristic, so it’s extremely rare to see an employer admit that discrimination was a factor in an employee’s termination. Unfortunately, it’s not too difficult to fabricate another reason for termination, or to simply provide no reason for termination at all (which is allowed under at-will employment laws).
To successfully prove discrimination in a wrongful termination case, you’ll need to prove that the employer acted with unlawful motive. Direct evidence is best (e.g. an incriminating email, or testimony from a witness), though circumstantial evidence is far more common. Circumstantial evidence could include proof that other employees who committed the same mistake weren’t disciplined or terminated, or the fact that the employer ignored established company policy when they terminated you.
Retaliatory termination falls under the same category as discrimination, but it’s worth mentioning separately. Employers are prohibited from taking any negative action in response to an employee’s participation in a “protected activity.” Examples of protected activities include:
- Answering questions in the course of an employer investigation of alleged discrimination, harassment, or workplace safety
- Asking coworkers and managers about their compensation, providing the employee reasonably suspects unequal pay practices and is acting in good faith
- Serving as a witness in an external investigation, complaint, or lawsuit alleging discrimination, sexual harassment, or workplace safety
- Communicating with a manager or supervisor about discrimination, harassment, or workplace safety
- Requesting and using unpaid leave under the Family Medical Leave Act
- Requesting reasonable accommodations for a disability or religious beliefs
- Resisting sexual advances or intervening to protect others from sexual harassment
- Requesting a workplace safety investigation
- Requesting to see the employer’s workplace safety records (on-the-job injuries, deaths, reported hazards, inspection reports, etc.)
By and large, the most common type of retaliation-based wrongful termination case involves whistleblowers who report illegal activity to the government. Whistleblowers are entitled to protection against employer retaliation, and they’re usually entitled to a monetary reward.
Violation of written agreements
Breach of contract is probably the easiest type of wrongful termination to prove. If the employment relationship is covered by any type of written agreement or statement that defines the length of employment or places restrictions on the employer’s ability to terminate employment, the court will hold the employer to those promises. Some common examples of written agreements that may affect an employment relationship include:
- An employment contract signed by the employer and the employee
- A collective bargaining agreement
- Formal company policies that are established in the employee handbook or company manual
- A one-sided written contract that’s issued and signed by the employer (note that the employee wouldn’t need to sign this to be binding)
Keep in mind that not all binding employment agreements are labeled as a “contract.” Any time an employer issues a written document and expresses the intent that the document is a binding promise, the court will hold the employer to those promises. For example, if you are provided with an official statement promising employment for a set/minimum amount of time when you’re hired, that’s a binding promise by the employer. Failure to follow through on those promises could be considered grounds for wrongful termination.
Violation of implied agreements
Implied agreements in the form of verbal promises are difficult to prove, but they can be used to prove wrongful termination. Most employers are careful not to make promises of permanent employment or guaranteed promotions, but the courts have recognized implied agreements when an employer promises continued employment for a specific period of time. Companies are also held to established progressive discipline systems (e.g. you get 4 absences in 90 days before you’re subject to termination, or you are safe from termination as long as you maintain a sales conversation rate of at least 25%).
Violation of public policy
Generally speaking, an employer can’t terminate an employee in retaliation for activities that are protected by public policy. For example, an employee can’t be terminated for exercising their right to vote, taking time off to serve on a jury, or serving in the military or National Guard. Employers are also prohibited from terminating an employee for his or her refusal to carry out orders that would cause the employee to break the law.
Breach of good faith and fair dealing
When an employer acts unfairly, the court may be persuaded to support your wrongful termination claim. Historically, courts have found that employers breached their duty to good faith and fair dealing by committing one of the following actions:
- Terminating or transferring employees in order to prevent them from earning or collecting sales commissions
- Misleading employees about their chances for wages increases and promotions
- Fabricating the reasons for termination when the true motivation was to replace the employee with a lower-paid replacement
- Soft-pedaling the negative aspects of a particular job, such as the need to travel for excessive periods of time or work unreasonable hours
- Constructive discharge
That said, judges and juries can be reluctant to recognize the good faith and fair dealing exception to at-will employment laws. To prove a clear breach of good faith and fair dealing, you’ll need some type of direct evidence or circumstantial evidence.