Wrongful Termination: Were You Fired Illegally? What to Do

Think you were fired illegally? Learn what wrongful termination is, how a wrongful termination lawsuit works, and what to do.

Dana called me a couple of years ago when she was in a parking lot. At the time of the call, Dana had a cardboard box filled with things from her desk. Her voice was shaking as well. “I am being fired,” she stated. “Two weeks after I informed HR that my manager was making comments about my age. That’s against the law, isn’t it? Right?”

I was going to say “yes,” and I wanted to say “yes.” However, the truth was much more involved, and because of that telephone conversation, I began to research this subject.

I’m so sorry if you’re currently holding your desk supplies, or if you’re feeling nauseated. We will go through this process together to determine whether you have been wrongfully terminated, and what steps you may take. Staying informed about Legal Updates can also help you understand your rights and the options available to you.

What Exactly Is “Wrongful Termination”?

Here is a fact that most people are surprised by: Being terminated from your job for an unfair reason does not equal being terminated from your job illegally.

Wrongful discharge occurs when an employee is let go by his/her employer in violation of federal, state, or local laws; a valid written or oral agreement between the parties regarding the employment relationship; or an established public policy. It is important to note that the term “in violation of” means that simply having a bad boss, firing an employee for a questionable reason, or letting an employee go without notice does not necessarily constitute wrongful discharge.

Imagine it as if there were a speed limit. Many people drive poorly or unsafely, however, you only receive a traffic violation if you violate a certain regulation. In employment law, this “certain regulation” is what converts an unfair dismissal into an illegal dismissal.

The At-Will Catch Nobody Warns You About

I had to tell Dana about this and it hurt. Most states in the United States have at-will employment. An employer has the right to terminate an employee’s employment contract at will, with or without cause. An employee also has the right to quit his/her job at will.

Montana is the one exception. Generally speaking, once an employer has passed through its “probationary period” with a worker, the company will have to show that they have legitimate reasons for letting go of that individual.

Employment at-will is subject to some limitations, and these limitations determine everything. If you believe you were terminated without cause, then you may be able to prove this if your employer let you go for one of the following reasons:

Discrimination based on a protected trait
Retaliation for doing something the law protects
Breach of contract, including some implied promises of job security
Public policy violations, such as refusing to break the law

Let’s walk through each one.

4 Types of this

Discrimination

Federal laws prohibit an employer from terminating an employee based upon their race, color, religion, sex (which includes pregnancy, sexual orientation, and gender identity), national origin, age (40 years of age and older), disability, or genetic information. In addition to these federally-protected characteristics, many states and local jurisdictions have added additional protections to the list.

Dana’s case is classified in this category. The Age Discrimination in Employment Act (ADEA) applies to cases that involve discrimination based on age.

Employer size is also important. The provisions of Title VII and the ADA apply to employers who employ at least 15 people; however, the provisions of the ADEA apply to employers who employ at least 20 people. In addition, there are states that have laws which may include smaller businesses.

A final point people frequently overlook is that when someone files a claim for discrimination, they must first submit a charge to the Equal Employment Opportunity Commission (EEOC) before filing a this lawsuit in court.

Retaliation

Retaliating is much more difficult to spot, and this is what people tell me about most. A business will retaliate by firing you for taking actions that are protected under the law. For example, if you:

Reporting harassment or discrimination
Blowing the whistle on safety or legal violations (such as filing an OSHA complaint)
Taking part in an investigation or lawsuit
Requesting a reasonable accommodation
Taking protected leave, such as FMLA leave or military leave
Filing a workers’ compensation claim

I have found this analogy helpful to illustrate what I think about when I am considering how to respond to the question “Is it illegal for an employer to retaliate against an employee?” Retaliation is similar to being penalized for pulling the fire alarm, even though the building actually caught fire. In addition, employers are legally prohibited from punishing employees who report unlawful conduct.

Observe the timing of events in Dana’s narrative. Her employer terminated her employment two weeks subsequent to her filing of a complaint. Although the temporal relationship between the filing of the complaint and the termination of employment does not establish anything definitively, it certainly causes attorneys to pay attention.

Breach of Contract

The vast majority of individuals in today’s workforce do not have a written agreement with their employer. If you do have such an agreement, and that agreement states that you can only be terminated from employment for certain specified reasons or that there must be a specific procedure followed before you can be terminated, then if your employer terminates you without following either of these provisions of your employment agreement, they will have violated that agreement.

With regards to implied contracts, things become somewhat more complex. Whether an implied contract is formed depends upon the laws of the state where you reside. An implied contract may exist through either the creation of an employee handbook or through a verbal promise (“You will always have a job here if you perform well”). The existence of such an implied contract will be based upon the specific circumstances surrounding each case; therefore, you should maintain copies of both your previous employee handbook and offer letter.

Public Policy Violations

Courts in most states will not allow employers to terminate employees when such terminations would negatively impact the public interest. Examples of some of the most common reasons for employer termination include:

Refusing to commit an illegal act
Reporting a safety violation
Serving on a jury
Exercising a legal right, like voting or taking approved military leave

These rules vary widely by state, so local advice matters.

A Quick Word on Constructive Discharge

Employers may not always terminate you from your position. Rather, they may create a situation at work that is so intolerable (e.g., a dramatic decrease in salary, a hostile work environment, a very restrictive schedule) that you are forced to resign. If this occurs, courts will consider this as a “constructive discharge” – effectively a termination.

The bar is high, though. Talk to an attorney before you resign in frustration.

Claim Types at a Glance

Claim Type	Primary Basis / Example	Common First Step
Discrimination	Firing due to race, gender, age, or disability	File a charge with the EEOC
Retaliation	Firing for whistleblowing or reporting harassment	Agency charge or legal notice
Breach of Contract	Violating a written or implied job agreement	Review agreement terms; civil suit
Public Policy	Firing for refusing to break the law or taking legal leave	Consult employment counsel for local statutes

Was Your Firing Wrongful? A Quick Gut Check

I told Dana to grab a notebook and answer these five questions honestly:

In the past year have I done anything that would be considered “legally protected” under Federal or state laws? (Complaint, request time off, reporting a violation, filing a claim).
Did the firing follow soon afterward? Timing matters.
Did a protected characteristic have an influence on what happened? Were there any remarks made about it, and did my boss treat other employees differently than me?
Did my employer violate their own rules or agreement? Review your employee handbook and other written agreements.
Do the stated reasons keep changing? Shifting explanations can signal trouble.

If you said yes to any of the above, then please continue reading. If you said no to all of the above, then you can find out about other options by having your situation evaluated by a professional.

What to Do Right Now

Take a deep breath. Here’s what I’d do in your shoes, in roughly this order.

Write all of your thoughts and memories down as soon as they happen. Include dates, names of individuals present during the conversation, exact wording of conversations, and even descriptions of other people who were present. Memory is fleeting, and the details you record now will be the foundation for your case.
Keep all evidence. Gather up all of your performance appraisals, emails, text messages, the offer letter you received, the employee handbook, and any correspondence related to complaints. Do not obtain company confidential materials or use an account that you do not have permission to utilize. Be sure to obtain only those items which you are authorized to possess, and consult with an attorney when you are uncertain.
Ask to review your personnel file. Several states allow you to view it. This will provide insight into when your employer made a record of the “reason” for your termination (before or after) you raised the issue.
Avoid signing any documents quickly. A severance agreement typically includes a release; as such, you will be giving up your ability to file a lawsuit against the employer in exchange for compensation. Make sure you read through the agreement thoroughly, and request additional time to allow an attorney to look over the agreement.
Be careful with your words and posts. Venting about your job on social media or to previous coworkers could backfire. Keep all of those details private, just between you and your lawyer.
Be aware of the time limit. Generally speaking, discrimination claims are subject to a statute of limitations that is typically 180 days long, and in several states can be extended to 300 days. Whistleblower complaints, on the other hand, typically have much tighter time constraints; some only allow for filing within 30 days. If you fail to meet one of these time limits, you will most likely be unable to file suit at all. (Lawyers refer to these time restrictions as “statutes of limitations.”)

How a Wrongful Termination Lawsuit Works

I thought that my research on the topic would lead me to picture a dramatic courtroom scene. Instead, what actually happens is usually a slower and quieter process than I expected. Typically, a this lawsuit will proceed in the following order:

Consulting with an attorney who specializes in employment law is recommended. Many attorneys provide initial consultations at little to no expense. Also, most of these attorneys will charge based upon a contingency arrangement where they only receive compensation when you are successful in your case or resolve the matter through settlement.
If you are filing an administrative charge (which is usually necessary for most discrimination claims and many retaliation claims) you typically begin your process with the EEOC or a similar state agency.
Once the agency process is complete (or if the agency does not have an administrative remedy available) the lawsuit will officially begin in civil court.
Both parties exchange proof such as emails, documents, depositions and testimony of witnesses during the discovery process.
Come to an agreement. A majority of cases are resolved prior to a full trial via pre-trial mediation, arbitration, or a settlement.

Be aware, most employment contracts contain arbitration provisions that will direct any disputes you have with an employer out of the courtroom. Please review all your paperwork.

What Can You Win? Potential Remedies

If your claim succeeds, remedies can include:

Reinstatement to your previous position
Back pay, meaning lost wages and benefits from the date of firing
Front pay, meaning expected future earnings if reinstatement isn’t possible
Compensatory damages for emotional distress
Punitive damages, which punish an employer for severe misconduct
Attorney’s fees and court costs

Caps and the available options for your claim will be determined by what kind of claim you are making as well as where you live; therefore, do not believe that all of the items listed above apply to you.

What Happened to Dana?

Dana spoke with an employment lawyer in the same week and then filed an EEOC charge in a timely manner. After much discussion, anxiety, and ramen noodle dinners, Dana’s case was resolved via mediation.

She said the most helpful thing she stopped doing was asking “is it fair?” and instead began to ask “can I prove it?”

I would pass along this lesson to you. Anger can be a valid emotion. However, when trying to take action on a claim, you need to consider the timing of your actions, provide evidence to support your position, and choose an appropriate legal theory to base your arguments upon.

FAQs

Can I Sue for this?

Yes. It depends on whether the employer has dismissed you based on an illegal reason (i.e. discrimination, retaliation, breach of contract, or public policy violation). A lack of fairness in the decision to terminate is insufficient.

Can My Employer Fire Me for No Reason?

Yes, in the majority of states. Under an “at-will” contract, an employer may terminate the employment relationship at any time for any reason (or no reason at all), provided that the true basis for the termination is not illegal.

Do I Need to File with the EEOC First?

Normally, if you want to make a claim about discrimination in the workplace, you have to file a formal complaint with the EEOC (or your state’s equivalent) prior to being able to sue.

How Long Do I Have to File?

The deadline for you to file a lawsuit will depend on the type of claim you have, as well as what state you reside in. Most discrimination claims have filing deadlines that typically range from 180 to 300 days. Whistleblower claims have even shorter filing deadlines that can be as short as 30 days. You should act quickly.

What’s the Difference Between this and Constructive Discharge?

Wrongful discharge occurs when an employee is let go by his or her company; however, with constructive discharge, an employee quits because the environment created by the company is unbearable.

Should I Hire a Lawyer?

The earlier you consult with a labor law lawyer, the better. Many of these lawyers provide free consultations, so you will be able to see if there are any other claims that may apply to your situation, which you may not have noticed.

Key Taking

“Unfair” does not mean “illegal.” Many employment relationships in the U.S. are at-will, which means that employers have the ability to terminate employees at any time for virtually any reason as long as the termination itself isn’t illegal.
There are four primary reasons for an employee to claim they were wrongfully discharged; these include discriminatory practices by the employer, retaliatory action against the employee for speaking out about some issue with the company, breaking the terms of an existing employment contract, or engaging in conduct that violates public policy.
The date of each document, as well as the names of the individuals involved in the conversation and the actual conversation itself should be documented. All e-mails, reviews, and company handbooks should be saved as proof. What is most important is being able to demonstrate that the events occurred.
Deadlines for filing discrimination lawsuits can vary from 180 to 300 days and most of the time you must file with the Equal Employment Opportunity Commission (EEOC) prior to suing your employer for this. There are also some whistle-blower statutes that have a deadline as short as 30 days.
When you get legal help early, do not sign on the dotted line quickly. Severance agreements can take away your right to sue; also, most lawsuits are resolved through settlement or mediation rather than through a court proceeding.

Additional Resources:

EEOC: Filing a Charge of Discrimination: The official EEOC guidelines for filing, eligibility, and deadline requirements for charges of discrimination.
FindLaw: At-Will Employment and Wrongful Termination: Explains what at-will employment means, which states follow it, and the exceptions that can make a firing wrongful.
Cornell Law School LII: Wrongful Termination: A clear, easy-to-read explanation of the basic legal principles that govern wrongful termination claims.