Employment is generally presumed to be “at will” absent contract terms to the contrary. Such a presumption enables both the employer and the employee to terminate the work relationship at any time, for any reason. “Employment at Will” allows employees to take employment without an obligation to stay for a specific duration of time, unless a contract expressly states a minimum employment period. Because employees are free to leave a job whenever they please, employers are also permitted to terminate employees whenever they desire, so long as the law does not prohibit the termination. But termination of an at-will employee may be prohibited by statute or by public policy and thus become wrongful.
Wrong Termination in Violation of a Statute
- Discrimination against a Protected Class
Protected classes may not be the basis of employment or termination decisions. A class becomes protected, and therefore becomes an illegal basis for termination, when the federal or a state government passes a law prohibiting discrimination against a member of that class. A terminated employee can successfully assert a wrongful termination claim against his or her former employer if he or she is able to establish the following: 1) membership in a protected class, 2) satisfactory work performance, 3) discharge, and 4) similar individuals (not members of the protected class) were treated more favorably.
Age: The Age Discrimination in Employment Act (ADEA) was enacted in 1967 to prevent discrimination against employees over the age of 40. The ADEA prohibits employers from refusing to hire, firing, or otherwise discriminating against an employee based solely on their age. For an employer to be covered by the ADEA, it must: 1) be engaged in an industry affecting commerce, 2) have 20 or more employees, and 3) have employees over the age of 40.
Gender Identity: Title VII of the Civil Rights Act of 1964 prevents employers from terminating employees based upon their gender identity. In recent decisions, courts have held that sexual orientation discrimination and gender identity discrimination are both considered forms of gender discrimination and are forbidden by Title VII.
Pregnancy: The Pregnancy Discrimination Act of 1978, an amendment to the Civil Rights Act, forbids employers from terminating employees because of pregnancy, childbirth, or other pregnancy related conditions. The Family and Medical Leave Act (FMLA) provides an additional level of protection for pregnant employees. Under the FMLA, it is wrongful for an employer to discharge an employee for taking FMLA leave or taking time off work for childbirth.
Race: Title VII of the Civil Rights Act of 1964 prevents discrimination and harassment based upon the lightness or darkness of a person’s skin. Furthermore, an employer may not terminate an employee based upon the employee’s country of origin, birthplace, last name, or language preference.
Disability: The Americans with Disabilities Act of 1990 (ADA) prohibits employers from terminating employees based solely on disability. Under the ADA, an employee is deemed to be disabled it he or she can show one of the following: 1) physical/mental impairment that substantially limits one or more major life activities, 2) a record of such impairment; 3) the employee is regarded as having such an impairment. The ADA gives a disabled employee the right to request reasonable accommodations to allow performance of essential job functions.
- Retaliation for Performing a Legally Protected Action
Employers are prohibited from terminating employees for performing a legally protected action. Retaliation protected actions include:
Whistleblowing: A whistleblower is any employee who voluntarily reports illegal or dishonest actions of their employers. There are multiple different state and federal laws which protect employees from wrongful termination for whistleblowing. At the federal level, the Whistleblower Protection Act of 1989 (WPA) makes it illegal to terminate federal employees for voluntarily disclosing information about illegal or dishonest activities. Additionally, most states make it unlawful to fire employees for reporting such illegal or dishonest acts.Employees must be careful when filing a whistleblowing claim based on state law, as state laws vary according to jurisdiction. For example, some states require employees to file whistleblower claims within 90 or 120 days.
Filing a Discrimination or Harassment Suit: The law protects employees from termination based solely on the premise that they are filing a discrimination lawsuit. Retaliation for filing such a suit, during or after employment, is illegal.
Refusing to Perform Illegal Activities: An employee may not be terminated for refusing to engage in illegal activities of any kind.Employees should know that an employer’s direction to perform an illegal act provides no defense to an employee who actually performs an illegal act. An employer simply does not have the authority to direct employees to commit illegal acts.
Vocalizing Complaints about the Working Environment or Wage Practices: The law does not permit employers to terminate employees solely because the employee expressed dissatisfaction with the working environment or wage practices. However, not all language is protected. For instance, such retaliation laws do not give employees the right to threaten their employer.
Wrongful Termination in Violation of Public Policy
An employer’s violation of public policy may give rise to a common law, non-statutory tort claim for wrongful termination. Courts, however, have failed to develop clear guidelines as to what constitutes a public policy prohibiting termination. Most courts refuse to define the term “public policy,” preferring to determine such wrongful termination actions on a case-by-case basis. Despite the tort’s subjective nature, two broad principals are widely applied. First, the dispute must affect the public in some nature, and second the public policy must be clearly mandated.
A claim for wrongful discharge in violation of a public policy requires an employee to prove, beyond a preponderance of evidence, 1) performance of an act encouraged by public policy or refusal to perform an act discouraged by public policy, 2) termination, and 3) the sole motivating factor for termination was that the employee promoted the best interests of the public.
There are a number of remedies for victims of wrongful termination. Some of these remedies include: entitlement to back pay, reinstatement to the former job position, compensatory damages, and punitive damages. The specific remedies available are highly dependent on the facts of the termination.