For many employees, the possibility of termination is a dark cloud that hangs over their heads. Due to the fast-paced nature of the U.S. economy, even a short-term loss of income can make it impossible for a person to keep a roof over their head, keep their utilities running, or put food on the table, not to mention the adverse effects it could have on one's family.
Being wrongfully terminated is likely much more painful and traumatizing than being fired for cause. A wrongful termination may be defined as a loss of employment for unlawful or prohibited reasons, which may include discrimination against minorities or other protected classes or retaliation against an employee for exercising certain rights they are lawfully entitled, or reporting violations to regulatory authorities. If you think you were wrongfully terminated, AAL has put together a short list of things you can do to fight back.
It is critical to note at the outset that just because you’re an “at-will employee,” (which means you can be fired without cause and at the employer’s discretion and is by far the most common designation of the employer-employee relationship in the U.S.), does not mean your employer can fire you for any reason at all without consequence. Specifically, in an at-will employment relationship, your employer can fire you because they don’t like your attitude or the color of your shirt, and you would have no claim for breach of contract or other legal options to pursue—unless you can show that the actual reason for your firing was unlawful, in which case the “at-will” designation will not bar a wrongful termination claim.
Wrongful terminations are generally due to either unlawful discrimination against an employee based on their age, race, religion, or gender or in retaliation against an employee for exercising their rights or taking actions protected by law, such as filing complaints with the labor authorities for violations of minimum wage, overtime benefits, or failing to enforce workplace safety standards. Employers often retaliate against workers who filed a whistleblower complaint with the Occupational Safety and Health Administration (OSHA) or an employee who reported another for sexual harassment. Another common reason employees are retaliated against is for enforcing their rights in connection with collective bargaining agreements and unions.
Another thing you should be aware of is that you may have a wrongful termination claim even if you quit. Employers looking to avoid the penalties for wrongfully terminating someone will often try to create a hostile work environment, demote the employee, reduce their pay, or negatively modify their conditions of employment such that the employer will be driven to resign seemingly of their own accord. This may be described as a constructive discharge, and employees that are constructively discharged may pursue wrongful termination claims even if they technically resigned
If an employee believes that they were wrongfully terminated, they should gather evidence to support their case. Although a complaint can be filed without evidence, having evidence can increase the chances of success and prevent evidence from being lost. If the claim is based on a contract violation, the employee should keep copies of their current and previous employment contracts. This will help to demonstrate which parts of the agreement were violated by the employer.
For retaliatory firings, such as those resulting from union activity, whistleblower claims, or reporting harassment, it is important to retain evidence of the facts or actions motivating the employer’s retaliatory conduct, as well as evidence of the employer’s retaliatory behavior. Examples of such evidence can include:
By keeping these records, employees can create a detailed timeline of events that show when the retaliatory behavior occurred and what led to the wrongful termination.
Once an employee has found that they have been subjected to a wrongful termination, if they were terminated for retaliatory or discriminatory reasons, they should report their termination to the appropriate government organizations. The Equal Employment Opportunity Commission (EEOC) is responsible for addressing employment discrimination, while OSHA can help employees who were retaliated against for reporting unsafe working conditions. The EEOC enforces several anti-discrimination laws, including the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act, and Title VII of the Civil Rights Act of 1964. This gives the EEOC the jurisdiction to address discrimination based on an employee’s:
If an employee reports a discriminatory or retaliatory termination, the EEOC can investigate and assist in resolving the issue. If the evidence supports the employee's claims, the EEOC may offer mediation between the employer and the employee. If the mediation is unsuccessful, the EEOC may continue to investigate the claim and pursue legal action on behalf of the employee. If the wrongful termination is based on reporting a workplace safety violation, then employees should file a report with OSHA. OSHA can issue fines and penalties for safety violations and also require that employers implement certain safety measures and work protocols. OSHA can also impose penalties on employers that fire or otherwise retaliate against whistleblowers.
While the EEOC and OSHA are not guaranteed to resolve the issue of wrongful termination, they can greatly assist in advocating for the employee. If the EEOC or OSHA have determined not to continue pursuing the claim, then it may be time to explore a more litigious solution.
If you believe your employer has violated your rights or that you have been wrongfully terminated from your position, you may be able to pursue a claim against your employer to seek damages for the losses that you have suffered.
A skilled attorney with extensive Employment Law experience can zealously advocate on your behalf in order to get you the best possible outcome for your case. Using their legal expertise, trial tactics, and expert witnesses, your attorney will be able to gather evidence of your mistreatment and present that information in the most compelling way for your case.
Through AAL, you can find a number of dedicated attorneys with vast amounts of Employment Law knowledge and experience to help you seek the justice that you deserve.
*Disclaimer: Attorney At Law does not represent all lawyers in all states. There may be differences of opinion. It’s always advisable to consult with an attorney when in a legal situation.