Wrongfully versus illegally
YAKOBCHUK VIACHESLAV/ShutterstockIf you've been fired from your job, whether you can or should file a lawsuit depends on a variety of factors. First and foremost, have you been fired wrongfully? "Wrongful termination" or "wrongful firing" is the legal term that encompasses most, if not all, the possible ways that your employer can "let you go" that might give rise to a lawsuit. Most commonly, wrongful firing/termination involves:
- Violation of applicable law (state, federal, or even local/municipal): This is the clearest example of what is meant by illegal firing. This includes termination that constitutes racial, age, and other discrimination against a person who is a member of a protected class (we'll get to that in a bit). It also includes a termination that is retaliatory against an employee for an action taken by the employee that is protected by law (we'll get to that in a bit too).
- Violation of an employment or other private: This is where the employer and the employee are parties to a contract governing the terms of employment. When the employer fires the employee in breach of the contract, the termination is wrongful (although not necessarily illegal).
- Violation of a collective bargaining agreement. This comes up in when an employee is a member of a union, and the employer is bound by such an agreement that protects the employee. Firing someone in violation of a collective bargaining agreement could be both illegal and wrongful.
But speaking generally here, whether we use the term wrongful or illegal, we're talking about a situation with respect to which you may end up having rights against your employer (for having had your employment terminated) that can be enforced by a court of law. If you're currently on the job hunt, avoid these resume mistakes at all costs.
Generally, it's OK if your boss fires you for no reason at all
Tyler Olson/ShutterstockOne of the harshest realities of employment law is that in 49 of our 50 U.S. states, employment is considered "at-will" (the holdout state is Montana, and we'll explain that in a moment). At-will is a concept that is intended to protect employers. An at-will employee can be fired for literally no reason at all, and with no notice. For example:
Employer: Good morning, Employee. Have a great day. And by the way, it's your last.
Employee: What? Why?
Employer: No reason.
This scenario is probably an employer's most litigation-proof way of going about firing an employee in the 49 states that are not Montana (in which employees cannot be fired except for "good cause" after a specified probationary period). That being said, it is extremely rare for an employer to fire their employees in this manner.
However, this way of firing gets murky once something "wrongful" comes into play. What would make it wrongful is if violates a contract that you can enforce or a law that protects you. So the first thing you want to ask yourself is whether your firing violates a contract. Make sure you do these 10 things at your last day at any job.
Does your firing violate a contract?
palidachan/ShutterstockAny employer can ask an employee to sign a contract, but it's more common when the employee's job will involve confidential information or payment via equity in the employing company, because employment contracts frequently address these matters. If you have an employment contract, the terms of your hiring and firing are governed by the terms of the contract. However, most employment contracts are specifically "at-will." Even if the contract specifies that you are to be employed for a certain length of time, that does not, alone, nullify your at-will status. You can still be fired for any reason or no reason during your tenure.
However, if your employment agreement states you will not be fired without good cause, then you are not an at-will employee, regardless of what state you're in. If your employer even so much as says that to you, you might have a case if your employer fires your for any reason that is not good cause. But then, of course, you'd find yourself in a "employer-said/employee-said" situation, and the difficulty of proving who said what could be far greater than your possible gains in taking your employer to court.
If you're not an at-will employee, your employer is said to have "good cause" for firing under the following circumstances:
- For the purpose of making budget cuts
- Your performance negatively impacts the business
- You are harassing other workers at the office
- Violation of confidentiality
- Threatening other employees
- You are violating terms of the employee handbook
If your employer has carefully documented the circumstances surrounding "good cause," then it is unlikely that you will be able to claim you were fired wrongfully—unless, of course, the circumstances indicate otherwise. So, whether you're a contractual employee and fired for "good cause" or an "at-will" employee fired for any reason or no reason, the question will be what are the signs that something wrongful was actually afoot? (Find out what happened to a woman who sued the company that fired her for pumping breast milk at work.)
Are you a member of a "protected class"?
Monkey Business Images/ShutterstockOne thing to consider is whether you are a member of a "protected class," says Erik Gunderson, an employment attorney in Southern California. "Protected classes" are defined by law, and in nearly all U.S. States, and under any federal employment, they include anyone who is:
- Over the age of 40
- Taking (or who took) leave under the Family Medical Leave Act
- Requesting (or who requested) an accommodation for a medical condition or disability
- In the military reserve or National Guard who is absent because of appropriate activation orders
- On jury duty
- Making (or has made) a claim for Worker's Compensation benefits
- Asking (or has asked) to be paid what they have actually earned.
- Lodging (or has lodged) a legal complaint against their employer.
- A "whistleblower" (one who brings an employer's wrongdoing to light), although Gunderson says that the particulars vary from state to state and sometimes based on who the employer is.
If you are a member of a protected class, your employer can't fire you because of your identification with that protected class, Gunderson emphasizes. A member of a protected class can be fired just like any other employee. What they are protected from is being fired for being a member of a protected class. Whether that is the case and how you can prove that is discussed below.
Even if you're not in a "protected class," you may still be protected
FS Stock/ShutterstockAlthough one might not be in a protected class, per se, attorney Gunderson says that in virtually all 50 states, it is illegal for an employer to fire someone because of their:
- sex (male, female, or otherwise)
- national origin
- ethnic group (whether real or perceived)
- skin color
- religious affiliation or creed
Again, the same causal link must be present for a termination to be "wrongful." (These are the 9 things to do if your boss is a psychopath.)
Some states offer protection to additional classes of people
Indypendenz/ShutterstockIn some states, the list of protected activities and classes is more expansive than in others, Gunderson says. For example, in California, it is also wrong to fire an employee based on:
- Sexual preference (whether real or perceived)
- Gender identity or expression of gender identity (whether real or perceived)
- Military or former military status
- Marital status (whether real or perceived)
- Genetic information
- Requesting past payroll records for review and analysis
- Most forms of off-duty political activity
And the causal link must be present, of course, between the firing and the employee's identification.
But it's not just about getting fired
bluedog studio/ShutterstockNot all discriminatory or otherwise wrongful behavior by an employer involves the actual firing of an employee. According to Gunderson, other actions that an employer may take wrongfully—if the actions are linked to the employee's being protected in one of the ways discussed—include:
- Denial of a highly-likely promotion
- Reduction in pay, hours scheduled, or other opportunities to earn income
- Unjustifiably poor performance reviews
- Withholding of payment, bonuses, or commissions
- Imposition of unusual scrutiny and supervision
As with wrongful termination, it's not the employer's action, taken on its face, that makes it wrongful. It becomes wrongful if it is directly linked to some protected status. Got fired? Here's how to make the most of your situation.
Another protection: You can't be fired for complaining about wrongful treatment
Tiko Aramyan/ShutterstockIf you're the victim of mistreatment by your employer that is connected directly to your being a member of a protected class or otherwise deserving of protected status, you can't be fired for complaining about the mistreatment, according to Robert Klingler, an employment attorney in Ohio. And any termination on that basis would be wrongful.
Whatever you do, don't take your complaint to social media. And please follow these other helpful etiquette tips for complaining on social media.
Signs there's a link
mojo cp/ShutterstockThe tough part about making a claim of wrongful firing (or wrongful treatment) is establishing the link between the employer's actions and your claim of being protected in some way. There are signs, however, that make can clue you in to that link, according to Mary Greenwood, Employment and Labor Attorney, Human Resources Director, and author:
- Although you receive a bad performance evaluation, but there is nothing to evidence that your performance was bad
- Although you're fired for poor performance, your last peformance evaluation mentioned no problems
- Your boss fires you without following the established protocol/procedure, especially if it is outlined in the employee handbook
- You are in a protected category/have protected status, and your treatment has been different from those not in the category or having the status.
- The person who treated you wrongfully actually made discriminatory comments such as "You're not woman enough to do this job" or "We really need some new blood in this department" or "It's just impossible for us to accomodate your need for wheelchair ramp."
- You are fired immediately after announcing your pregnancy
- You are fired during or immediately following having taken Family Medical Leave.
- You're fired just before you're about to become eligible for your pension
In addition, Renata Castro, an immigration attorney in Florida points out that if you're working in this country on an employment authorization card, and your employer fires you close to the expiration date of that card, it might or might not be a coincidence. Therefore, Castro recommends that you seek legal counsel to sort through the matter. And that would be the advisable course of action if any of the other aforementioned signs are present in your own employment situation.
Speaking of green cards, have you ever wondered why they're called that? Or why money is green? Or why any of these other things are the colors they are?
Even with a link, you're facing a challenge
KieferPix/ShutterstockThere are circumstances in which your employer may cite your protected status in taking an action that you feel is unfair, and yet it does not rise to the level of being wrongful, attorney Klingler points out. For example you are pregnant, it's wrongful for your employer to treat you differently unless your pregnancy makes it objectively impossible for you to do your job. But if your employer takes action specifically based on your pregnancy but also for a legitimate business reason, it becomes more difficult to argue that you've been treated wrongfully explains Adriana Cara, a San Diego-based labor and employment attorney for a 650-attorney law firm.
For example, if after you announce your pregnancy, your boss suggests transferring you to a department whose busy season ends around the same date as your baby is due, that might be a legitimate business reason, provided the transfer comes with equivalent pay and benefits, and the employee is qualified for the position. Moreover, once the pregnancy is over, the employee must be reinstated in her original job.
Similarly, if you're fired just before your pension vests or just before your work authorization card expires, your employer's actions may well be wrongful. But they may not be. Same thing if you're fired at age 46. It could be wrongful, but it may not be. One thing you will need to prove in any of these cases is whether your employer has treated all employees in your circumstances the same way. If you are the only 46-year-old to be fired, it will be a lot more difficult to prove wrongful termination based on age discrimination than if every employee who turns 46 gets fired within a month of their birthday.
(We don't mean to pick on people who just turned 46. In fact, we think it's safe to say, we're kind of jealous, considering that's the age when they can expect to have the very best sex of their lives.)