What is Wrongful Termination Law?

When can you sue your former employer over job loss?

By Super Lawyers staff | Reviewed by Canaan Suitt, J.D. | Last updated on September 19, 2023 Featuring practical insights from contributing attorney Twila S. White

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Losing your job can be devastating, and it can often feel unfair. Sometimes that unfairness is also unlawful, and you may be entitled to sue your former employer.

These instances are called wrongful termination actions, and they might help you get your job back or be financially compensated.

The following is a brief overview of common situations that can form the basis of a wrongful termination claim. You can use this information to help determine whether you should speak with a wrongful termination lawyer about your case.

What is At-Will Employment?

Employees are generally presumed to be employed at will, which means your employer does not need good cause to fire you. They can terminate you at any time, and you can leave at any time.

At some point in your career, you’ve probably signed a document indicating that you understood it was at-will employment, or you might have been given an employment handbook that lays out, in detail, that you can be let go for any reason.

At-will has limitations. An employer cannot use an at-will employment provision to engage in unlawful conduct. [They] cannot subject the employee to discrimination, harassment, or retaliation based on a protected class [enumerated] under anti-discrimination statutes. An employer can’t point to an at-will provision to justify their discrimination or retaliation.

Twila S. White

Are There Limits to At-Will Employment?

Even if you are an at-will employee, your termination can still be in violation of the law or public policy.

“At-will has limitations,” explains Twila S. White, an employment litigation attorney in Hermosa Beach, California, who represents employees in a wide range of employment law actions. “An employer cannot use an at-will employment provision to engage in unlawful conduct.”

What is unlawful conduct?

“It means that the employer cannot subject the employee to discrimination, harassment, or retaliation based on a protected class,” says White. “For example, if you engage in a protected activity as an employee, such as filing a complaint about discriminatory conduct in the workplace regarding race, age, gender, sexual harassment, pregnancy, or any of the other protected classes enumerated under anti-discrimination statutes, those activities are protected. An employer can’t point to an at-will provision to justify their discrimination or retaliation.”

Additionally, your employer may have promised or implied that your employment would continue indefinitely or for a set period of time unless there was good cause to end your relationship. If they terminate you in violation of an employment contract, you may have a breach of contract claim.

Employers Cannot Fire You for Discriminatory Reasons

While employers are generally free to end the employment relationship for any reason, they are not allowed to end it for illegal reasons, including discrimination.

Federal laws such as Title VII of the Civil Rights Act protect employees from being fired for discriminatory reasons based on their membership in a protected class, including:

  • Race
  • Color
  • Religion
  • Sex (including pregnancy, sexual orientation, and gender identity)
  • National origin
  • Age
  • Disability
  • Genetic information

Many states have anti-discrimination laws that often provide more robust legal protections for employees than their federal counterparts.

Employers Cannot Retaliate Against You For Engaging in Protected Activities

Employers cannot fire employees as retaliation for engaging in legally protected activities such as:

  • Filing a complaint with the human resources department about workplace sexual harassment or a hostile work environment;
  • Whistleblowing on the company’s illegal conduct or unsafe working conditions;
  • Requesting reasonable accommodations for a disability or religious practice;
  • Filing a workers’ compensation claim;
  • Filing a complaint about wage-and-hour violations.

To be successful, you will need to prove that you engaged in a protected activity, that your employer knew about it, and that they fired you because of it.

Employers Cannot Terminate You for Taking Medical Leave Under the FMLA

Under the federal Family and Medical Leave Act (FMLA), employers with 50 or more employees must provide up to 12 weeks of unpaid, job-protected leave to eligible employees in the following circumstances:

  • The birth or adoption of a child;
  • The employee has a serious medical condition;
  • The employee must care for a family member (such as their spouse, child, or parent) with a serious illness.

It’s unlawful for an employer to terminate you for taking protected medical leave under the provisions of the FMLA or comparable state laws.

Employers Cannot Breach an Employment Contract, Written or Implied

If you have some kind of promise of continued employment for a specific term or a promise that you can only be fired for good cause, then you might not be considered an at-will employee.

These promises can be found explicitly in employment contracts, or they can be implied by your employer.

Written Promises

Written promises can take the form of an offer letter that makes promises about continued employment or an employment contract that states you can only be fired for good cause.

If you have a written contract or similar document that makes these kinds of references, you might not actually be an at-will employee, and you may be able to enforce these promises in court through a breach of contract claim or other legal action.

Implied Promises

If your employer has said or done things that imply an employment agreement of continued employment, you might have an implied employment contract. These implied contracts can be found in promises of “permanent employment” or in employee handbooks that describe a disciplinary procedure that must be followed prior to termination.

How Long Do Wrongful Termination Cases Take?

“It’s true that many wrongful termination cases settle,” says White. Still, they can take years to resolve.

“Before the Covid-19 pandemic, we were looking at the life of a case to be about two to three years maximum. Now, following the pandemic, cases are reaching the five-year mark.”

The long duration of these cases can have negative impacts on employees’ access to justice and enforcing their legal rights. “For example, by the time a case finally gets to trial that has been pending that long, there is a propensity for witnesses to not be found or for memories to be unclear. If you then factor in an appeal, some of these cases could easily be 10 years old. I don’t know if that feels like justice to employees who have had to wait so long.” 

How Are Legal Fees Covered in Wrongful Termination Cases?

Given the fact that these cases can last for several years, how do clients afford them?

“A lot of clients, particularly ones who have been terminated, don’t have the financial resources to pay for the costs along the way,” says White. “So, the lawyer ends up having to advance those costs. But that advancing of costs carries significant risk. That lawyer often has to turn away other cases and to put their practice on hold.”

To address this issue, some states, such as California, have enacted a fee-shifting arrangement. “This gives incentive to the employer to reach a settlement agreement in which they don’t necessarily admit wrongdoing, but they do compensate the employee. It’s a way for both parties to resolve the issue and move on.”

However, sometimes employers won’t do that. “Instead, they decide to go to trial,” says White. “And if they lose at trial, they have to pay the attorney’s fees in addition to whatever the jury awards the plaintiff.”

Why Should I Talk to a Lawyer?

“Wrongful termination cases are really hard to litigate,” says White. “Usually the employers, these big companies, get the largest law firms around to defend them and use scorched-earth litigation tactics and run up the costs.”

Because of this, you don’t want to litigate these issues without help.

To be successful in your case, you will likely need to interview former coworkers and bosses. You will also want to get copies of your employment records and performance reviews so you can prove there was no other reason for your termination. A lawyer can help you interview these witnesses and get copies of these records, and will also help you evaluate your case and decide on the best course of action.

A lawyer will further be able to anticipate potential problems with your case and advise you on how to approach them. They will also keep track of deadlines and file all the paperwork with the necessary courts and agencies, giving you one less thing to worry about.

Finding the Right Attorney for Your Needs

It is important to approach the right type of attorney—someone who can help you through your entire case. To do so, you can visit the Super Lawyers directory and use the search box to find a lawyer based on your legal issue or location.

To help you get started, you may want to consider looking for an employment lawyer with experience handling wrongful termination cases.

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