Being fired from a job can be a very difficult experience, especially when it happens for unlawful reasons. However, as a general rule most employees in the U.S. work at will, which means that they can be fired at any time, for any reason, such as poor performance or violations of company policy, or no reason at all.
On the other hand, a termination may be unlawful under certain conditions, for example when you are fired for discriminatory or retaliatory reasons, or against the terms of your employment contract. In such circumstances, it is very likely that you have been wrongfully terminated and may have a legal claim.
What is Wrongful Termination?
One thing that my potential clients are often surprised to learn is that there is actually no legal cause of action for “wrongful termination,” even though this term gets frequently used (read: misused) in our everyday speech, on TV and even in court.
Instead, what we actually mean to say, when we say “wrongful termination” is that an employer fired someone for unlawful and impermissible reasons that broke federal, state or local laws.
This means that technically you cannot file a lawsuit for wrongful termination per se, but instead, you would sue under the law that was broken, such as anti-discrimination laws, laws that grant an individual a special right to engage in protected activity, whistleblower laws or etc.
What Are the Unlawful Reasons I Cannot be “Wrongfully Terminated” For?
So to put it all together, despite the fact that you are employed at will, an employer cannot terminate you for unlawful reasons, such as violations of local, state and federal employment laws or public policy. A termination that breaches an employment contract may also be unlawful. If you believe you have been wrongfully terminated, you may have a legal basis for a lawsuit for the following reasons:
- Discrimination — Federal law prohibits employers from taking an adverse employment action (including termination, but also demotion, cutting of hours, etc.), against employees based on any legally protected characteristic (e.g. age, race, religion, disability, gender, military service, national origin, ethnicity, or pregnancy). In addition, some New York state and local laws prohibit discrimination against employees based on a more comprehensive list of characteristics that includes sexual orientation, gender identity, immigration status, domestic violence survivor status, caregiver status, and arrest or conviction records.
- Retaliation and Whistleblowing
Under federal, state and local laws, employers are also prohibited from terminating employees for complaining about unlawful wage payment practices, discrimination or sexual harassment, reporting safety violations or unlawful conduct (whistleblowing), or participating in any other legally protected activity, such as engaging in lawfully organized strikes or protests. If you complained and were fired or harassed to a point where you had to quit, you may have a claim under corresponding laws.
- Employment Contracts — If you are working under an employment contract, your employer may not be able to fire you at will. This, of course, is only true, if you have a well-conceived employment agreement which includes provisions that ensure job security for a certain period of time or that specify the conditions for termination. So when in doubt, please read what is in your employment contract to know your rights. Better yet, make sure that you consult an attorney before entering into an employment contract, in order to negotiate the maximum amount of benefits and job security possible. Also, remember that an employment contract may not prevent you from being fired for cause.
- Violations of Public Policy — You cannot be terminated for participating in a legal right or community action, such as jury duty, voting, or military service.
- Breach of Good Faith/Fair Dealing — Certain jurisdictions prohibit employers from terminating you to avoid paying an earned sales commission or bonus. Sometimes a breach of good faith may also occur if your employer forces you to quit, reassigns you to a less desirable position, or makes the working conditions unpleasant to avoid granting you perks, benefits, or compensation that’s due.
In short, you cannot be terminated because of a legally protected characteristic or for seeking to enforce a protected right. Finally, you may have been wrongfully terminated if you were fired without cause while working under an employment agreement or for attempting to collect any compensation or benefits you were due to receive.
Recoverable Damages in a “Wrongful Termination” Lawsuit
There are a number of available legal remedies in a successful “wrongful termination” lawsuit. Depending on the circumstances, you may be entitled to reinstatement, as well as unpaid wages and accrued benefits. If reinstatement is not feasible or desirable, you may also be awarded damages, including:
- Back pay (wages you would have been paid but for unlawful termination)
- Front pay (wages lost during the time it takes you to find another similar employment)
- Any earned but unpaid commissions, bonuses or other types of compensation
- Lost employment benefits (e.g. medical and dental insurance, pension or 401k plans, possibly stock options)
- Emotional distress damages
- Attorneys’ fees and legal costs
You may also sometimes seek injunctive relief from the court, which ensures that by the court’s order the employer is prohibited to continue their unlawful practices going forward.
Ultimately, spotting, crafting and successfully proving an unlawful termination claim can be difficult and nuanced task, which makes having proper legal representation critically important.
If you believe you have been fired in violation of local, state or federal law, the best way to enforce your rights is to consult an experienced employment lawyer, and better yet, if they focus their practice on discrimination and retaliation claims.
Your attorney can help to gather important employment records, determine if any laws were violated, interview witnesses (co-workers), and file a claim on your behalf.
Although taking legal action against an employer or former employer can be frightening, consultations with an attorney are confidential and privileged, so don’t feel afraid to seek the information you may need to know all the options you may have in connecting with your wrongful termination.
I strongly believe that learning your rights is the first step in mending the unlawful practices that you may have experienced. If you learn the law was broken and if you choose to proceed, you will have a powerful legal recourse on your side.
Milana Dostanitch joined Lipsky Lowe LLP in 2018 and focuses her practice in employment law, including individual, complex collective and class action litigation under federal and state laws. Milana counsels and represents clients in a wide variety of employment matters, including the recovery of unpaid wages and benefits, tip misappropriation, sexual harassment, hostile work environment, retaliation, discrimination (based on gender, race, age, national origin, disability, sexual orientation, religion, etc.), and breach of contract. Milana’s practice is focused on advocating for employees’ rights for fair treatment and compensation in the workplace, by counseling both individuals and employers to create a safe and thriving environment for their employees and business.