For many employees, the prospect of termination is a dark specter that looms over them in the back of their minds. Due to the relentless pace of the U.S. marketplace, a loss of income for even a short period can be absolutely devastating to a person’s ability to keep a roof over their head, utilities running, or food on the table for themselves, to say nothing of the potential ripple effect it has on their family.
Worse than losing a job, being wrongfully terminated can be an even crueler and more callous event. Whether it was due to discrimination, retaliation, or making an example, a wrongful termination is any loss of work that comes as a result of some illicit reason or method. If you have reason to believe that you have been wrongfully terminated, AAL has put together a short list of steps that can be taken to fight back.
While every termination can feel wrongful, the first thing someone who feels they have been wrongfully terminated should do is to assess what makes the termination wrongful. In general, employers are assumed to run an at-will workplace by the courts. This means that the first hurdle to achieving justice for wrongful termination is proving that the termination was illegal.
There are several conditions that can render an otherwise legal termination wrongful. Most commonly those are violations of an employment contract, retaliation for some reason, discriminatory firings, union-busting, or constructive discharge.
The most clear-cut example of wrongful termination is when it violates an employee’s contract. Having an employment contract that defines when and how an employee can be terminated is one of the few things that can be used to definitively prove that the employee was not working in an at-will workplace. If the employee is terminated for any reason that is not enumerated in the employment contract, that termination can be argued to be wrongful.
Another way that a firing becomes illegal is if it is retaliatory. A retaliatory firing is usually targeted at a person who spoke up. This could be a worker who filed a whistleblower complaint with the Occupational Safety and Health Administration (OSHA), or an employee who reported another for sexual harassment.
The retaliation could also be related to the prospect of employees forming a union. This is known as “union busting” in which an employer retaliates against employees who so much as consider joining a union by docking hours, assigning more difficult or strenuous tasks, or firing them. Whatever the reason, if an employer fires someone shortly after they reported an illegal or unsafe practice that can be considered retaliation and therefore may make the firing wrongful.
A subtype of retaliatory discrimination is known as constructive discharge. This is not an actual firing, since the employee left of their own accord, but if the employee quits after the employer makes their work harder, more laborious, or more dangerous, then the quitting may be taken as wrongful termination regardless.
The final major category of wrongful termination is discrimination. If an employee is fired for a reason that is based on one the 8 protected classes of worker, then it may be considered a wrongful termination. Discriminatory firing can be the firing of many members of one group at once, or a pattern of consistently firing members of a group over time.
Once an employee feels that they have determined that their termination was wrongful, they will need to start gathering as much evidence as they can to demonstrate their case. While a complaint can be filed with no evidence, the more evidence that is gathered early on, the lower chance there is that evidence can be lost through deletion or forgetfulness.
If the wrongful termination claim is based on a violated contract then the employee should keep any copies of their contract that they have. If possible, the employee should have their current version as well as any previous versions of the employment contract. This will make it easier to demonstrate what specific parts of the contract were violated by the employer.
In the case of retaliatory firings, whether for union activity, whistleblower claims, or reporting harassment in the workplace, proof of the initial activity and the retaliatory activity should be retained. This can include:
By keeping these records, employees will be able to present a detailed timeline of when the retaliatory behavior occurred and what sparked the retaliatory firing.
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 a number of 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:
Once an employee reports that they have suffered a discriminatory termination or a retaliatory firing for reporting discrimination, the EEOC can investigate the allegations and help to resolve the issue. If the EEOC investigation turns up evidence to support the employee’s claims they may offer mediation services between the employer and the employee. If the mediation breaks down or either group refuses the mediation then the EEOC investigator will continue to look into the case and the EEOC will potentially bring 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, but the agency can also issue heightened penalties to employers who 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 not satisfactorily resolved the employee’s issue, then it may be time to explore a more litigious solution.
If you have had your rights violated by your employer or have been wrongfully terminated from your position, you may be able to file a lawsuit in order to seek justice for the losses that you have suffered. By demonstrating how the termination was illegal, you may be able to receive compensation for your injuries including potential reinstatement at your old position. The best way to prevail in your lawsuit is with an Employment Law attorney.
An experienced Employment Law attorney 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 Employment Law attorney will be able to gather evidence of your mistreatment and present that information in the most compelling way for your case.
AAL has a number of experienced and dedicated Employment Law attorneys who can 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.