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Wrongful Termination

wrongful termination lawyersWrongful Termination Lawyers 

In law, wrongful dismissal, also called wrongful termination or wrongful discharge, is a situation in which an employee’s contract of employment has been terminated by the employer, where the termination breaches one or more terms of the contract of employment, or a statute provision or rule in employment law. Laws governing wrongful dismissal vary according to the terms of the employment contract, as well as under the laws and public policies of the jurisdiction.

A related concept is constructive dismissal in which an employee feels no choice but to resign from employment for reasons that result from the employer’s violation of the employee’s legal rights.

Types Of Wrongful Termination

Being terminated for any of the items listed below may constitute wrongful termination:

  • Discrimination: The employer cannot terminate employment because the employee is a certain race, nationality, religion, sex, age, or (in some jurisdictions) 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. In the US, this “retaliation” is forbidden under civil rights law.
  • Employee’s refusal to commit an illegal act: An employer is not permitted to fire an employee because the employee refuses to commit an act that is illegal.
  • Employer is not following the company’s own termination procedures: In some cases, an employee handbook or company policy outlines a procedure that must be followed before an employee is terminated. If the employer fires an employee without following this procedure, depending upon the laws of the jurisdiction in which the termination occurs, the employee may have a claim for wrongful termination.

The absence of a formal contract of employment does not preclude wrongful dismissal in jurisdictions in which a de facto contract is taken to exist by virtue of the employment relationship. Terms of such a contract may include obligations and rights outlined in an employee handbook.

Many jurisdictions provide tribunals or courts which that hear actions for wrongful dismissal. A proven wrongful dismissal will tend to lead to the award of one or both of the following remedies:

  • reinstatement of the dismissed employee;
  • monetary compensation for the wrongfully dismissed.

State & Federal Wrongful Termination Laws

In the United States, there is no single “wrongful termination” law. Rather there are several state and federal laws and court decisions that define this concept.

In all U.S. states except Montana,[1] workers are considered by default to be at-will employees, meaning that they may be fired at any time without cause.

Some employees have contracts of employment that limit their employers’ ability to terminate them without cause. Other employees may be members of unions and benefit from a collective bargaining agreement that defines disciplinary proceedings and limits when an employee may be terminated. Employees who work for government agencies normally benefit from civil service protections that restrict termination. Those employees, if terminated, may attempt to bring wrongful termination claims under the terms of the contract or agreement, or civil service law.

At Will Employment & Wrongful Termination Cases

Although at-will employees are protected from termination by civil rights laws and other laws that prohibit retaliatory termination, in the absence of a contract of employment or collective bargaining agreement, or civil service protections extended to government workers, they have few protections from being fired.

In some situations an at-will employee may be able to claim wrongful termination. Three leading grounds for claiming wrongful termination are:

  1. Implied contract: In some situations a court might find an implied contract of employment that restricts the employer’s ability to terminate an employee without cause. For example, the terms of an employee manual may support an employee’s claim that the employer must follow a defined disciplinary process prior to termination.
  2. Public policy: In many states it is possible to argue that the employer’s reasons for terminating an employee, although not in violation of a statute, violated the state’s public policy such that a wrongful termination claim should be allowed. For example, a court might allow a claim by an employee who was fired for refusing to take an action that was in violation of the law, for reporting a violation of the law to an enforcement agency, or for otherwise exercising the employee’s rights under the law.
  3. Covenant of good faith and fair dealing: In what is in many senses an extension of public policy doctrine, some states allow an at-will employee to pursue a wrongful termination claim if the cause for the termination is deemed to reflect bad faith on the part of the employer. For example, a state might apply this doctrine to allow a claim against an employer that terminated an employee a week before that employee’s pension benefits vested, for no reason other than to avoid paying the employee a pension.

A 2016 study found evidence that the implied-contract exception to at-will employment reduced state employment rates by 0.8% to 1.7%. The initial impact is largest for female and less-educated workers (those who change jobs frequently), while the longer-term effect is greater for older and more-educated workers (those most likely to litigate). By contrast, we find no robust employment or wage effects of two other widely recognized wrongful-discharge laws: the public-policy and good faith exceptions.”

Wrongful Termination In Violation Of The Law

In the United States, termination of employment is not legal if it is based on your membership in a group protected from discrimination by law. It is unlawful for an employer to terminate an employee based upon factors including employee’s race, religion, national origin, gender, sexual orientation, disability, medical condition, pregnancy, or age (over 40), pursuant to U.S. federal laws, including Title VII of the Civil Rights Act of 1964. Many states also have civil rights laws that protect workers from discrimination. For example, those forms of discrimination are prohibited by the California’s Fair Employment and Housing Act (FEHA).

Many laws also prohibit termination, even of at-will employees. For example, whistleblower laws may protect an employee who reports a legal or safety violation by the employer to an appropriate oversight agency. Most states prohibit employers from firing employees in retaliation for filing a workers’ compensation claim, or making a wage complaint over unpaid wages.

Benefits Awarded In Wrongful Termination Cases

If you sue a former employer for wrongful termination, you are asking the jury to award you money, called damages. Monetary damages are usually the only remedy available in a wrongful termination lawsuit.

But the jury doesn’t just hand over a big pot of cash. The purpose of monetary damages is to make you whole: to compensate you for what you lost because of the employer’s actions. You will have to prove not only that you suffered losses because of the employer’s wrongful actions, but also the amount of those losses.

What Are Damages?

Wrongful termination cases are civil lawsuits. If you file a civil wrongful termination lawsuit, you (the plaintiff) are asking the court to order your former employer (the defendant) to pay money to compensate you for losses caused by the termination. This compensation is called damages. But, you cannot simply waltz into court and ask for “one million dollars” (to quote Dr. Evil); rather, you have to prove the amount of various types of losses you suffered at trial.

Here are the main elements of monetary damages that you may recover if you win a wrongful termination lawsuit.

Lost Pay

What earnings have you lost because you were fired? This element of damages includes the pay you would have received if your employer had not fired you, as well as any earned and unpaid wages, overtime, or other compensation the employer has withheld.

However, this amount is reduced by any money you earned after being terminated. If you get re-hired at the same or a higher rate of pay at some point after the termination,you won’t have any more lost pay as of the date of re-hire. If you get re-hired at a lower rate of pay, you will continue to have lost pay damages, equal to the difference between what your old job paid and what you are earning at your new job. For example, if you are out of work for one month, you count that full month of lost pay at the former pay rate. If you get a new job but are paid $1,000 per month less than at the former job, your lost pay damages continue to add up at the rate of $1,000 per month. Lost bonuses may also be a part of this element of damages.

Lost Benefits

The value of lost employment benefits is also an element of your damages from a wrongful termination. Because the cost and value of benefits can be difficult to quantify in dollar terms, you might need an expert to evaluate exactly how much you’ve lost for trial. This element includes medical and dental insurance, pension or 401k plans, stock options, and profit sharing, among other benefits.

Emotional Distress

In some wrongful termination cases, you can ask the jury to award emotional distress (also called “pain and suffering”) damages at trial. But, juries generally award emotional distress damages only if the employer has acted really badly and the employee has suffered in a way that can be verified by a mental health professional.

Often, the amount to be awarded for emotional distress is entirely up to the jury. This makes it difficult for a lawyer to evaluate how much you might receive for this part of your case.

Punitive Damages

Punitive damages are an amount the employer is ordered to pay for actions that are particularly egregious. Unlike other kinds of damages, which are intended to reimburse you for losses, punitive damages are intended to punish the employer and deter similar behavior by others in the future.

Punitive damages are not available for all wrongful termination claims and are not available in some states. In general, punitive damages are difficult to recover even where they are available, and impossible to quantify in advance. You may have to satisfy a greater burden of proof at trial in order to win punitive damages. And, even if these damages are available and you have met the burden of proof, the amount of such damages is entirely up to the jury.

Attorney Fees

Some types of employment-related claims may entitle you to an award of attorney’s fees. Most do not. In many (but not all) wrongful termination cases, your attorney will take the case on a contingent fee basis. This means the attorney will be paid a set percentage of what you win.

Contact Our Wrongful Termination Lawyers

If you have been fired unfairly or without cause please do not hesitate to contact our team of wrongful termination lawyers for a free consult. They charge no fee unless they win and recover on your behalf.