You have just had the worst day. You went into work, prepared to earn a living, only to be sent home unemployed. You have been fired or laid off. No matter how unfair or wrong you think the action is, you have to figure out what to do next. Do you update your resume, or do you fight back? Most employment terminations are within the employer’s rights. However, if you were fired or let go for an unlawful reason, you may have the right to file an administrative complaint or lawsuit against your previous employer.
What is wrongful termination?
Wrongful termination is when you are let go from your job in violation of an employment contract, state law, or federal law. If your being let go or fired does not violate a law and is not a breach of a contract, then it is most likely lawful, even if it is unfair or unexpected.
Five things you need to know about wrongful termination
As you search for an attorney who fits your situation and needs, there are a few things you should know about wrongful termination:
- A dismissal may not be unlawful. An unexpected or unfair dismissal is not necessarily illegal. “The baseline rule in the U.S. is at-will employment,” says Steven M. Warshawsky, the founder and principal of The Warshawsky Law Firm. “There is a starting presumption that if someone is terminated, it was lawful. It is only if the employer violates some established exception to at-will employment that a termination becomes unlawful.” You can be let go for a multitude of lawful reasons, and “more often than not, a person’s rights have not been violated,” Warshawsky says.
- There is not one specific wrongful termination law. This type of administrative or legal action arises from various employment, civil, and contract rights. There are many federal and state laws that protect against discriminatory terminations, including Title VII, the Americans with Disabilities Act, and the Age Discrimination in Employment Act. Additionally “there are lots of statutes that prohibit employers from taking adverse actions against employees who do various things,” says Warshawsky, such as employees who complain about employment issues or blow the whistle on illegal conduct. “Anti-retaliation laws often come into play.”
- Federal and state discrimination laws differ. If you believe you were fired for a discriminatory reason or in retaliation for a complaint or whistleblowing, call an attorney immediately. Whether or not you have a valid discrimination claim varies based on state and federal law.
- A wrongful termination claim may be based on contract law. When you have a legally binding agreement regarding your position with your employer, the business must follow the provisions within that agreement when letting you go. You may have an oral agreement with your employer. However, this is harder to prove in court. Also, “for workers who are unionized, a termination could be unlawful if it is in violation of a collective bargaining agreement,” Warshawsky says.
- Public policy matters. If your employer let you go for a reason society would view as illegitimate, you may have a claim that your dismissal violates public policy. Recognized public policy exceptions include if you exercised a legal right or privilege, performed a public duty, or acted on ethical grounds.
It never hurts to ask a lawyer for advice
If you believe you were wrongfully terminated, your next step should be to talk to a local employment attorney and learn more about your rights. “Employees who believe that they have been wrongfully terminated can file a complaint with a government agency (Division of Human Rights and EEOC) or in court,” says Tammy L. Riddle, Esq., member of Hurwitz & Fine, P.C.
You should talk with your lawyer about whether you must file an administrative complaint first or whether you can file a lawsuit. You also should ask whether you can file federal and state claims at the same time. For example, “New York is a dual filing state, which means that once a complaint is accepted for filing with New York State’s Division of Human Rights (NYSDHR), it is accepted for filing with the EEOC, if jurisdiction is satisfied, and vice-versa.”
Through an administrative complaint or lawsuit, you may ask for your job back. However, this may put you in a less-than-ideal position once you are back at work. You may choose to pursue compensation instead. Talk with a lawyer not only about the process, but also about the potential solution following a wrongful termination.