Please ensure Javascript is enabled for purposes of website accessibility

Just Fired: Is It Wrongful Termination?

By InHerSight - May 16, 2020 at 9:15AM

You’re reading a free article with opinions that may differ from The Motley Fool’s Premium Investing Services. Become a Motley Fool member today to get instant access to our top analyst recommendations, in-depth research, investing resources, and more. Learn More

Here's what to do if it is.

This article originally appeared on InHerSight.com, a website where women rate the female friendliness of their employers and get matched to companies that fit their needs.

If you've just been fired from your job for no apparent reason and want to file a wrongful termination lawsuit, you may be disappointed. Almost all employees in the U.S. are "at-will," which means you actually can be fired for any reason (or none at all), except for reasons deemed unlawful or in violation of your employment contract or the terms of corporate policy.

A woman sits at a desk, with her head in her hands and elbows on the desk.

Image source: Getty Images.

Unfortunately, most people think they have more rights than they actually do, employment lawyer Ann-Marie Ahern tells us. 

At least half of people who've been fired believe they've been treated unfairly -- and while this may well be true, there is no legal basis upon which they can take action. She's found that employees at every level, from maintenance staff to CEOs, are equally misinformed as to their rights. Of 100 potential clients who call for help, Ahern has to turn away 95 because their termination is not illegal.

The reason most of us are so woefully ignorant of the reality, she explains, is that we've grown up believing that if we work hard and follow the rules, we will have employment. Unfortunately the doctrine of at-will employment makes this simply not the case.

But still, wrongful termination does happen.

What constitutes wrongful termination?

Being fired for discriminatory reasons, such as gender, race, religion, disability, or age, is against the law. Similarly, an employer who fires someone in retaliation for reporting discriminatory or other illegal practices may be sued for wrongful termination. The scenario is not uncommon; in fact, in 2019, the EEOC received 72,675 charges of workplace discrimination. Retaliation is at the top with charges regarding disability, race, and sex following in second place. 

You may have been wrongfully terminated if you were fired for a reason other than those set out in your employment contract. Your employer must abide by the termination provisions in that contract, whether it's a written or verbal contract. You can be fired legally with an employment contract in existence, but it would have to be for just cause; and the same protection holds for workers with union jobs.

In a nutshell, the presumption in most states across the nation is that, unless there is an employment agreement, employees are at-will, Ahern explains. And an at-will employee can be terminated for any reason at all, as long as it's not discriminatory or retaliatory.

What do I do if I think I've been wrongfully terminated?

First of all, don't wait until you've been fired to take action.

Ahern advises employees to take first steps well before the actual termination: As soon as you start to feel that your job may be at risk, call a lawyer. You'll need to immediately gain insights, make internal complaints, and get as much documentation including emails and texts as possible to prove any illegal conduct by the employer. That written proof also includes performance evaluations and accolades, she adds.

Once you're fired, you'll be locked out of the office, without access to records or company-issued computers and phones. 

If you think you were terminated for a discriminatory reason, lawyer Sara Kane tells us that you should state that to your employer, whether that's by email to HR or management or during your exit interview.

Kane also recommends seeking the advice of counsel sooner rather than later. This approach will let you understand what, if any, rights you have with respect to your termination. Also, there are statutes of limitation in place regarding the time in which you have to bring a claim: You do not want to risk losing your opportunity to take action on a valid complaint.

What you shouldn't do

Don't publicly criticize your employer at this time, but don't go easy on them, either. Either approach can be used against you if you do sue for wrongful termination.

Kane's advice here is to be strategic about what you say and to whom. Even downplaying the issues can backfire. "As counsel, it is an uphill battle to overcome positive statements made by employees about the company on their way out the door." 

That might be the employee crying on Facebook about their sudden termination, saying things like, "I've always loved working here," "It's been a great place to work," and "There's such a wonderful company culture." Or it could be an employee who writes a note to their boss or HR saying how much they loved working with them, or saying everything was fine during their exit interview.

When you can't sue for wrongful termination

If you can't make a case for wrongful termination, ask your lawyer if filing an emotional distress lawsuit against your employer is possible in your state.

The attorneys at Barkan Meizlish in Ohio say you can do so there "if you have proof that some action by the company's managers triggered serious shame, fear, embarrassment, depression, or post-traumatic stress." They admit, though, that the barriers to success are high. You'd have to present evidence that your employer acted with intent, the action was extreme, and it was directly responsible for your severe emotional distress.

The Motley Fool has an ownership interest in InHerSight. Motley Fool CFO Ollen Douglass serves on the board of directors for InHerSight. Randi Zuckerberg, a former director of market development and spokeswoman for Facebook and sister to its CEO, Mark Zuckerberg, is a member of The Motley Fool's board of directors. InHerSight has no position in any of the stocks mentioned. The Motley Fool owns shares of and recommends Facebook. The Motley Fool has a disclosure policy.

Invest Smarter with The Motley Fool

Join Over 1 Million Premium Members Receiving…

  • New Stock Picks Each Month
  • Detailed Analysis of Companies
  • Model Portfolios
  • Live Streaming During Market Hours
  • And Much More
Get Started Now

Related Articles

Motley Fool Returns

Motley Fool Stock Advisor

Market-beating stocks from our award-winning analyst team.

Stock Advisor Returns
403%
 
S&P 500 Returns
128%

Calculated by average return of all stock recommendations since inception of the Stock Advisor service in February of 2002. Returns as of 08/17/2022.

Discounted offers are only available to new members. Stock Advisor list price is $199 per year.

Premium Investing Services

Invest better with The Motley Fool. Get stock recommendations, portfolio guidance, and more from The Motley Fool's premium services.