Employment Law: Employee FAQ

Understanding Wrongful Discharge

Do you know what it means to be wrongfully discharged from employment? Do you know that there are many things employers may do, perhaps inadvertently, that expose them to wrongful discharge liability? Do you know the steps that you must take to bring a wrongful discharge claim? Do you know that employees can receive many different types of damages if they have been wrongfully discharged?

1. Although many employment relationships are at-will, meaning that either the employer or the employee may terminate the relationship at any time with or without reason, it does not mean that employers can act in a discriminatory manner. If an employer terminates an employee, even one who is at-will, in violation of federal, state or local anti-discrimination laws, it can face serious legal trouble.
2. Federal anti-discrimination laws protect employees from being discharged or otherwise penalized with respect to the terms and conditions of employment on the bases of race, color, national origin, sex, religion, disability, pregnancy, and age. These are known as protected classes State laws may mirror these categories of protections and may also protect additional classes of people or may provide broader protection than federal law. They cannot provide less protection.
3. Not all wrongful discharge claims are discrimination-based. If an employee is given a contract of employment, expressly or impliedly, and is terminated before the expiration of or in violation of that contract, he or she may be able to bring a claim for wrongful discharge and breach of employment contract.
4. Wrongful discharge suits may also be brought in situations where the employer has retaliated against an employee for exercising a right that is supported by public policy within the jurisdiction. For example, if an employee is terminated because he or she reported the employer to a governmental body for violation of workplace safety laws, the employee may be able to bring and win a wrongful discharge lawsuit.
5. If an employee refuses, at the demand of the employer, to perform an illegal act and is subsequently terminated, there may be a wrongful discharge cause of action. For example, if a construction employer demands that an employee perform work at a height without safety ropes, and the employee refuses and is thereafter fired, he or she may be able to bring a wrongful discharge claim.
6. If an employee is terminated for taking time off under a law, which gives him or her a legal right to have that time off, such as time off for voting or military service, he or she may also have a wrongful discharge cause of action.
7. An employer who has not followed specific disciplinary and termination policies that are in place can also face a wrongful discharge suit. For example, if an employer has a handbook that states that employees are entitled to receive two written warnings for misconduct or poor performance before they are terminated, and an employee is terminated after receiving only one verbal warning, that employee may be able to successfully bring a wrongful discharge action. However, if the handbook has a statement sufficiently disclaiming creation of a contract of employment as to the terms within it, it may not provide a sufficient foundation for such a claim.
8. If you are the victim of a wrongful discharge due to your membership in a protected class, there are some situations in which you cannot immediately bring your employer into court. Instead, under most federal laws you must first file a charge of complaint with the Equal Employment Opportunity Commission (EEOC). Similarly, if you are seeking the protection of state anti-discrimination laws, you must file a charge or complaint with the state or local equivalent agency. Make sure that you review and understand the legal requirements you must comply with in bringing a wrongful discharge claim. If your situation is covered by these anti-discrimination laws, the EEOC or state agency may be your sole avenue for seeking a solution.
9. Depending upon the situation, damages available to wrongfully discharged employees can include back pay, promotion, reinstatement or front pay in lieu of reinstatement, compensatory damages, required accommodations, injunctive relief, punitive damages, and attorneys’ fees.

Given the many ways in which an employer can wrongfully discharge an employee, the number of reasons (whether legal or not) that an employer may give for discharging an employee, and the significant damages that may be awarded, it is a good practice for both a terminated employee and an employer to retain counsel. An experienced attorney can help sort out the various issues and protect the rights and reputations of the client, whether that client is the employee or the employer.

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DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

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