Wrongful Termination Law
Almost all states operate under the “employment at will” doctrine, which is most simply described as the right of an employer to fire an employee for no reason and the right of an employee to quit for no reason. Despite the fact that most U.S. states operate under this “at will” employment doctrine, there are circumstances in which employees have legal recourse for being terminated by showing that the termination was wrongful due to a violation of their legal rights. Though, a common misconception is that an employee can sue for wrongful termination simply because he/she was treated unfairly, this alone, is not sufficient cause.
Sufficient legal cause to file suit for Wrongful Termination may include the following situations.
- Discrimination: basing termination solely on a class trait that is legally protected, such as age, race or nationality, gender, sexual orientation, disability, religion, etc.;
- Retaliation: termination as a way of “getting back” at the employee for reporting the employer for dishonest, illegal or wrongful activity, for filing a legal claim, or for refusing to act or behave in manner inconsistent with public policy (i.e. whistle blowing, filing a workers’ compensation claim or refusing sexual advances);
- Character Defamation: termination for a non-existent reason alleged by the employer, which defamed the employee, by use of false and malicious statements that prohibited or lessened the employee’s chances of securing other employement;
- Breach of Explicit Contract: termination without good cause when there is a written employment contract which contradicts the default at will status and there is no “escape clause” or if one exists, the termination does not meet the conditions of the clause;
- Breach of Implied Contract: termination without good cause when an implied contract or “implied-in-fact” contract exists, as determined by law on a case-by-case basis;
- Breach of Covenant of Good Faith and Fair Dealing: termination of an employee to avoid dealing with the worker in good faith and/or in a fair and equitable, honest and ethical manner;
- Constructive Discharge: “effective” termination, which occurs when the employee quits due to action or inaction by the employer which made working conditions intolerable, as recognized by any reasonable employee; and
- Fraud: termination based on intentional fraud, when the employer sought to purposefully deceive the employee and based on this deception, the employee was in some way harmed.
Public policy violations are viewed by most states as cause for wrongful termination, which overrides the at will doctrine. The idea that an act is against public policy may be sustained when the reasons for the terminations are viewed by society to be illegitimate or morally and ethically abhorrent. These violations include retaliation for filing a workers’ compensation claim or for a whistle blowing act; as well as discharging an employee who refused to do something illegal, or exercised a legal right against the employer’s wishes; taking time off work to serve on a jury or to vote, and even for serving in the National Guard. To allege a public policy violation in a wrongful termination claim, it is usually required that there be a statute addressing this in the applicable jurisdiction.
With regards to implied employment contracts, this can occur when an employer has made promises of employment for a set period of time, or even permanent employment. The use of an employee handbook which details specific steps for progressive disciplinary action is often called into play when trying to prove an implied employment contract. However, many employers who make use of these types of employment manuals have their employees sign a statement that disavows any formal contract. This will make any alleged implied contract ineffective.
The good faith and fair dealing covenant is not recognized by all states. In the states that do recognize this covenant, it is generally not acceptable for an employer to fire an employee without good cause, simply to avoid fulfilling guarantees of promotions, raises, commissions and/or bonuses owed to the employee. Constructive discharge and defamation of character are also viewed as breaches of the covenant of good faith and fair dealings. Claims based on this, however, are hard to prove and must show strong cause to persevere in a wrongful termination claim.
The penalties incurred by an employer when an employee has a successful wrongful termination claim, vary, dependent upon the jurisdiction. In some states they face a legal penalty prescribed by statute and in others the employer may be ordered to reinstate the dismissed employee and can be held liable for the worker’s lost wages, expenses and even punitive damages. Jurisdiction also determines how these claims must be filed, either with a government agency tasked with enforcing labor laws or by way of a civil lawsuit. With regards to discrimination violations, the employee generally must file the charge first with the Equal Employment Opportunity Commission (state and/or federal level) before being allowed to pursue his/her claim in court.
Because of the prevalence of at will employment and the fact that laws addressing wrongful termination can vary greatly from state to state, when an employee believes he/she has been terminated illegally, it is advisable to speak to an Employment Law attorney knowledgeable in Wrongful Termination law, to determine if the claim has merit in his/her jurisdiction.
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Wrongful Termination Law - US
- ABA - Section of Labor and Employment Law
The Section of Labor and Employment Law is your link to information that matters to you. Our 22,000+ members represent all perspectives of labor and employment law: employer, union, employee, public, and neutral. All are committed to a balanced discussion of employment issues in the United States and abroad.
- At-will Employment and Employment Termination - Definition
At-will employment is a doctrine of American law that defines an employment relationship in which either party can break the relationship with no liability, provided there was no express contract for a definite term governing the employment relationship and that the employer does not belong to a collective bargain (i.e., has not recognized a union). Under this legal doctrine: “ any hiring is presumed to be "at will"; that is, the employer is free to discharge individuals "for good cause, or bad cause, or no cause at all," and the employee is equally free to quit, strike, or otherwise cease work. ” Several exceptions to the doctrine exist, especially if unlawful discrimination is involved regarding the termination of an employee.
- Constructive Discharge Law
Constructive discharge is generally when working conditions are so intolerable as to amount to a firing, despite a lack of a formal termination notice. Unemployment benefits are typically unavailable when an employee quits, but may still be available to a former employee when a constructive discharge can be proven.
- Filing A Charge of Wrongful Dismissal for Discrimination
If you believe that you have been discriminated against at work because of your race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information, you can file a Charge of Discrimination. All of the laws enforced by EEOC, except for the Equal Pay Act, require you to file a Charge of Discrimination with us before you can file a job discrimination lawsuit against your employer. In addition, an individual, organization, or agency may file a charge on behalf of another person in order to protect the aggrieved person's identity. There are time limits for filing a charge.
- International Labor Organization - United States Employment Termination
The United States is one of the few countries in the world that still embraces the employment at-will concept. Although, as elsewhere, a pure practice of this doctrine has been eroded somewhat by jurisprudence, it is still predominant, particularly when one compares it to employment security law in other Western and developed countries. Consequently, with the exceptions of the States of Arizona and Montana, the Commonwealth of Puerto Rico, and the non-metropolitan territory of the US Virgin Islands, as yet there is no legislation specifically focused on employment termination.
- National Labor Relations Act
Congress enacted the National Labor Relations Act ("NLRA") in 1935 to protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices, which can harm the general welfare of workers, businesses and the U.S. economy.
- United States Department of Labor - Termination Issues
Upon termination of employment, some workers and their families (who might otherwise lose their health benefits) have the right to choose to continue group health benefits provided by their group health plan for limited periods of time. Employers may also be required to provide notices to their employees under the Consolidated Omnibus Budget Reconciliation Act (COBRA) and the Health Insurance Portability and Accountability Act (HIPAA).
- USDOJ - Employment Litigation Section
The Employment Litigation Section enforces against state and local government employers the provisions of Title VII of the Civil Rights Act of 1964, as amended "Title VII", and other federal laws prohibiting employment practices that discriminate on grounds of race, sex, religion, and national origin. The Section also enforces against state and local government employers and private employers the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), which prohibits employers from discriminating or retaliating against an employee or applicant for employment because of such person's past, current or future military obligation.
- Worker Adjustment and Retraining Notification Act (WARN)
The Worker Adjustment and Retraining Notification Act (WARN) protects workers, their families, and communities by requiring most employers with 100 or more employees to provide notification 60 calendar days in advance of plant closings and mass layoffs. Employee entitled to notice under WARN include managers and supervisors, as well as hourly and salaried workers. WARN requires that notice also be given to employees' representatives, the local chief elected official, and the state dislocated worker unit.
- Wrongful Discharge - American Civil Liberties Union (ACLU)
There are 80 million people employed in the private sector of the American economy. Only about 20 million of these are union members protected from unjust dismissal by collective bargaining agreements. The remaining 60 million are employed "at will". "At will" employees serve at the unfettered discretion of employers. They can be fired for any reason, even a bad one, or for no reason at all.
- Wrongful Discharge - Overview
An at-will employee's Cause of Action against his former employer, alleging that his discharge was in violation of state or federal antidiscrimination statutes, public policy, an implied contract, or an implied Covenant of Good Faith and fair dealing. At Common Law, an employment contract of indefinite duration can be terminated by either party at any time for any reason. The United States is the only major industrial power that maintains a general employment-at-will rule. Since the 1950s, however, many courts have allowed discharged at-will employees to bring suits alleging wrongful discharge from employment.
Organizations Related to Wrongful Termination Law
- National Employment Lawyers Association (NELA)
The National Employment Lawyers Association (NELA) advances employee rights and serves lawyers who advocate for equality and justice in the American workplace. NELA is the country's largest professional organization that is exclusively comprised of lawyers who represent individual employees in cases involving employment discrimination and other employment-related matters.
- National Labor Relations Board
The National Labor Relations Board is an independent federal agency created by Congress in 1935 to administer the National Labor Relations Act, the primary law governing relations between unions and employers in the private sector. The statute guarantees the right of employees to organize and to bargain collectively with their employers, and to engage in other protected concerted activity with or without a union, or to refrain from all such activity.
Publications Related to Wrongful Termination Law
- Institute for Research on Labor and Employment (IRLE)
Research institutes such as IRLE provide the public, and those who serve the public interest, with access to the finest research and policy advice. IRLE's innovative research, education and outreach programs demonstrate that with sound public policy to support labor and employment, we can do much more to build an America that works for everyone.
- Labor Law Talk - Wrongful Termination
Provides information on labor laws and for the purposes of this section, wrongful termination.
- Rapid Response Services For Laid Off Workers
Being laid off from your job is one of the most traumatic events you can experience in life. However, you do not need to go through this transition alone. Working with your employer, there are services and resources that can be brought to you, on site at your company prior to your layoff date. These services and resources are part of a program called Rapid Response, which will customize services and resources to your needs and the needs of your company, with a goal of getting you back to work as soon as possible and minimize the disruptions on your life that a layoff will cause.
Articles on HG.org Related to Wrongful Termination Law
- Retirement Age Limits in Work Agreements Are Effective - GermanyRetirement age limits stipulated in work agreements are not discriminatory and thus effective.
- What is “At Will” Employment?“At will employment” means that employers and employees have a wide range of freedoms in terminating their work relationship. "At will" states allow the firing of employees with good reason or for virtually no reason at all; however the termination must not violate the terms of a written contract, or break state or federal laws. Employees who are hired under these circumstances generally have little job security, and very few legal opportunities to fight for their job if they are fired.
- Wrongful Termination in California: Basis for a ClaimWrongful termination is among the most alarming issues in the employment industry in California. This employment issue has been affecting many employees in the state because it allows ‘at-will’ employment.
- Obesity in the WorkplaceIs being overweight a protected disability under the Americans with Disabilities Act of 1992? According to a recent decision of the Montana Supreme Court and similar decisions in the federal courts, it is, or at least can be. Whether you are an employee or employer, there is no easy or safe shortcut to managing your legal rights and liabilities without the advice of competent employment law counsel.
- Age-Related Issues in Employment Situations in the BahamasDiscrimination in the work place is often a high profile and issue, whether relating to sex, race, religion, disability or age. And it’s the issue of age and the potential for discrimination and unfairness in relation to redundancy and retirement that has recently attracted judicial attention. Whether you are an employee or an employer - if you have concerns relating to age discrimination in the workplace, contact our experience employment lawyers at Parris Whittaker for prompt advice.
- Obese Employees are Less Likely to Prevail Against an Employer in California State CourtPrivate employers may generally terminate or deny employment unless they discriminate on the basis of race, national origin, alienage, age, sex, or disability. The FEHA is the California law that prohibits such employment discrimination. Federal laws define protected disability differently than the FEHA. In a California state court, an obese employee who files a disability claim must prove that their obesity resulted from a physiological condition.
- Avoiding Liability for Unlawful Discrimination When Using Criminal Background ChecksAccording to guidance issued earlier this year by the Equal Employment Opportunity Commission (EEOC), 92% of employers in the U.S. now use criminal background checks for some or all of their job candidates.
- Preparing for an Employee TerminationTerminating an employee is perhaps the most unpleasant, yet necessary, task that an employer must carry out. Emotions run high during the process and, depending upon the situation, it may be necessary to repair damage caused by the employee to relationships, productivity and morale.
- The Guide to Fair Redundancy - UKThis article aims to answer the most frequently asked questions regarding redundancy. What is redundancy and what does it mean? According to the Employments Rights Act, Section 139 1996, employees face redundancy because of the following occurrences: • The employer wishes to terminate the business; and • The employer no longer requires the employer’s working role within the company .
- Proof Workplace Discrimination Can Happen to AnyoneThe attorneys at Walcheske & Luzi, LLC are continually surprised by the number of people who believe workplace discrimination could never happen to them. It is important to protect yourself and not assume others always have your best interest at heart. We’ve compiled workplace discrimination examples that demonstrate it can and does happen, and sometimes with a surprising twist. This one’s for the non-believers.
- All Employment and Labor Law Articles
Articles written by attorneys and experts worldwide discussing legal aspects related to Employment and Labor including: discrimination, employee benefits, employees rights, ERISA, human resources law, labor relations, outsourcing, sexual harassment, whistleblower, workers compensation and wrongful termination.