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Wrongful Termination

Did You Know?

According to the National Center for the State Courts, of all the civil cases filed, only 3% ever reach a jury.

wrongful_terminationIf you have been fired without a good reason or in violation of federal or state law (e.g., discrimination), this could be a wrongful discharge and you can challenge your firing. However, before you take action, run your complaint by an attorney for advice because it is likely to be time consuming and costly, and the laws regulating firings vary from state-to-state. But if you succeed, employers can be made to pay back wages, fines, and possible punitive damages or you can be returned to your job.

What You Can Do as a Worker

If you believe that you have been or are about to be wrongfully terminated from your job, there are a number of steps you can take:

  1. Make a detailed record of events, including interviews or conversations regarding your termination. Make a list of witnesses who may be helpful in supporting your case.
  2. Consult a lawyer. Employment law is a complex an ever changing field. Don't try and go it alone. There is a very short complaint filing periods for some statutory claims.
  3. Consult a state or federal agency for advice.
  4. Obtain a copy of your company's written personnel policies. These may contain valuable information about your employer's hiring and firing practices.
  5. Obtain a complete copy of your personnel file.

What You Can Do as an Employer

The most effective way to protect your self and your company from claims of wrongful discharge is to prevent such discharges from taking place.

  1. Establish formal personnel policies with the assistance of employment counsel. Know and follow your policies.
  2. Though it may sound obvious, treat your employees fairly and be consistent in your employment practices including termination practices.
  3. If you intend to reserve the right to terminate any employee "at will", make sure this condition is stated explicitly in the company's personnel manual or in the employment contract itself. Do not make the personnel manual the subject of the hiring interview or negotiations and do not make promises you do not intend to keep.
  4. Distribute or post required notices of the laws against employment discrimination and hold training sessions for all company managers and supervisors.
  5. Document all discipline and performance issues. Make sure performance evaluations are done in a timely manner, accurately, honestly, and in writing. Inform employees where improvement is needed.
  6. Thoroughly review the facts and circumstances leading to a possible termination decision and make sure all of the factors that could give rise to wrongful termination claims have been considered. Only discuss the termination with employees that have "a need to know". Consult employment counsel.
  7. Even if you have reserved the right to terminate employment at will, don't. There should always be a documented bona fide business reason for terminating employment.
  8. Make sure your Absenteeism rules do not run counter to the Family and Medical Leave Act.

When is a Job Termination Wrongful?

The rules for whether an employee was improperly fired or terminated from their job vary by state. The majority of states follow the rules of "At Will" Employment, below.

What Is "At Will" Employment?

The majority of states today follow the rule that employment is "at the will" of either the employer or the employee, or "at will." "At will" means that an employer can fire an employee for any reason the employer sees fit, provided it is not for an improper reason (listed below). It does not make a difference whether the employee actually did anything wrong, or whether the employer misunderstood the facts of the situation. If the employee is "at-will," any reason, including no reason, is a proper basis for termination.

Exceptions to At-Will Employment Terminations

The following are some exceptions to when firing an at-will employee amounts to wrongful termination:

Discrimination

The employer cannot terminate employment because the employee is a certain race, nationality, religion, sex, or in some states, sexual orientation.

Retaliation

An employer cannot fire an employee because the employee filed a claim of discrimination or is participating in an investigation for discrimination. This "retaliation" is forbidden under civil rights law.

Contractual Employees

Generally, an employee with an employment contract can only be terminated for the reasons stated in the contract. Employment contracts for specified periods of time or permitting terminations only for specific reasons are rare today.

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