WRONGFUL TERMINATION CLAIMS

You’ve just been fired. What do you do? First, assess your situation. While you shouldn’t ignore your rights, you also shouldn’t make rash decisions. Set your emotions aside and objectively assess the facts and circumstances surrounding your unexpected unemployment.

Maybe you weren’t given a reason for being fired. If you were, it should be carefully documented. Hopefully, you received something in writing from your employer. If not, write down what you were told while your memory is fresh.

Get the facts down on paper. This helps put things into perspective and will help if you later decide to have someone evaluate your case. An accurate summary of what happened while it’s still fresh in your mind could be helpful down the road.

Other details may be important. Note how you were terminated, who terminated you, and where and when it happened. Names, dates and places could be important to someone reviewing the case. Information in (or absent from) your personnel file could be relevant. A fired employee may very well ask for a copy of his or her personnel file. However, this doesn’t mean one will be provided.

The laws of your State may not give you the right to get a copy of your personnel file. Statutes in some states, for example, say an employee can review his or her personnel file but doesn’t have the right to photocopy it. Employers sometimes rely on this distinction to deny terminated employees access to their records.

Ultimately, though, an employer can usually be compelled to turn over the records in the pretrial process known as "discovery." So if you’re denied access to your records, the better course of action is to remain cordial — and take notes on the employer’s excuse for not turning them over.

If your employer failed to give you a reason, it doesn’t necessarily mean that the employer acted wrongfully. The general rule is that employment is on an "at will" basis, meaning that either the employer or the employee can terminate the work agreement at any time, for any reason.

If you think discrimination is a factor, there are federal and State laws in your favour. Well-known examples include prohibitions against discriminating on the basis of race, religion and sex. Another is age discrimination, which generally applies to persons over 40, and sometimes those with disabilities.

But the law doesn’t preclude an employer from firing someone who’s in a particular category. He or she just needs a good reason apart from the person’s protected status. For example, an employer couldn’t fire a disabled person because of a disability unless he can first show that the employer could not reasonably accommodate that employee’s disability.

EXCEPTIONS TO AT-WILL TERMINATIONS

The following are some exceptions to when firing an at-will employee amounts to wrongful termination:

Discrimination: The employer cannot terminate employment because the employee is a certain race, nationality, religion, sex, or in some states, sexual orientation.

Retaliation: An employer cannot fire an employee because the employee filed a claim of discrimination or is participating in an investigation for discrimination. Retaliation is forbidden under civil rights law.

Contractual Employees: Generally, an employee with an employment contract can only be terminated for the reasons stated in the contract. Employment contracts for specified periods of time or permitting terminations only for specific reasons are rare today.

Illegal Acts: An employer is not permitted to fire an employee because the employee refuses to commit an act that is illegal.

Family or Medical Leave: Federal law permits most employees to take a leave of absence for specific family or medical problems. An employer is not permitted to fire an employee who takes family or medical leave for a reason outlined in the Family and Medical Leave Act.

STANDARD TERMINATION PROCEDURES

Often, the employee handbook or company policy outlines a procedure that must be followed before an employee is terminated. If the employer fires an employee without following this procedure, the employee may have a claim for wrongful termination.

Unless the company policy or employee handbook states otherwise, employers are not typically required to give the employee any advance notice of job termination. Likewise, employees are not required to give their employers advance notice of leaving the company absent a contract or stated company policy.

If you have been fired, an attorney can help investigate the reasons for the termination and gather appropriate documents. Also, if you feel that you have been fired for an illegal reason, such as discrimination, a lawyer likely will be needed. Many worker's rights and civil right's laws have detailed procedures and filing deadlines.