Understanding Your Rights: Public Policy Violations in Wrongful Termination

At-will employment means employers can terminate employees for almost any reason. However, employers cannot fire employees for illegal reasons, like unlawful discrimination or in violation of public policy. When employers wrongfully terminate an employee in violation of public policy, the employee can take legal action against their employer.

Employees have the burden of proof to show their employer’s unlawful termination violated public policy, including state and federal statutes or regulations. In a wrongful termination lawsuit, employees can recover potential damages for lost wages, loss of benefits, and attorney fees. For legal advice about filing a wrongful termination claim, talk to a local employment attorney.

What Is a Public Policy Violation in Employment Law?

Most workers without an employment contract can be fired for any reason as long as it is not illegal. However, there is a public policy exception to at-will employment. Employers cannot fire workers in violation of public policy and other employment laws.

“These claims are going to depend on what your state deems to be a violation of public policy. And that’s going to differ from state to state,” explains Erin M. Pulaski, an employment lawyer at Rudy Exelrod Zieff & Lowe in San Francisco, California.

“You have to show that there is a well-established public policy that the employer has violated. And typically, that is going to be some violation of the law or an applicable statute or regulation.”

Examples of Public Policy Violations

There are many examples of public policy violations in employment law. In some cases, there are state and federal laws that specifically prohibit employers from taking adverse actions against employers for these protected activities. In other cases, the employer must show the employer’s actions violated a specific public interest.

Many wrongful termination public policy claims fall into one of four categories:

1. Refusing to break federal or state law
2. Following a legal obligation
3. Exercising a legal right or protected activity
4. Reporting illegal activity

1. Refusing To Break the Law

When an employer directs you to do something that would violate local, state, or federal laws, you can refuse. If your employer fires you for refusing to do something illegal, you can file a wrongful termination claim. To win, you can show that the activity would result in a violation or noncompliance with state or federal laws.

Say an employer tells a worker to falsify an environmental report to hide hazardous waste dumping in violation of environmental laws. The employee refuses to falsify the reports. The employer fires the employee in retaliation. In this case, the employee can file a wrongful termination lawsuit against their former employer.

2. Following a Legal Obligation

Employers can’t fire an employee for complying with legal their obligations. For example, an employee gets a jury duty notice. They notify their employer that they will need time off for jury duty. The employer says they’ll lose their job if they can’t find a way out of jury duty.

The employee shows up for jury duty, and the employer terminates their employment. In this scenario, the employee can file a wrongful discharge claim. This is because jury duty is a civil obligation for citizens. Employers can’t retaliate against workers for serving on a jury.

“Employees are entitled to take time off to participate in civic duties such as voting or serving on a jury. Where that kind of civic duty exists, and to the extent that the employer is terminating you for engaging in it, that would give rise to a wrongful termination claim,” says Pulaski.

If an employer threatens to fire you if you take jury duty, you can contact your state labor agency or the U.S. Equal Employment Opportunity Commission (EEOC).

3. Exercising a Legal Right

Employers can’t punish an employee for exercising their rights under the law.

Say a worker’s spouse falls seriously ill and the worker needs time to provide care. The worker gives their employer notice under the Family and Medical Leave Act (FMLA). After taking qualifying leave and returning to work, the employer notifies the worker they no longer have a job. The worker can file a wrongful termination claim.

Another example would be filing a workers’ compensation claim. You have a legal right as an employee to get workers’ compensation benefits for job-related injuries. If you suffer an injury on the job, you can get medical care and wage benefits until you are able to return to work. An employer cannot retaliate against you for claiming workers’ comp.

4. Reporting Illegal Activity

Employers cannot fire an employee for reporting illegal activity. For example, say an employer regularly commits safety violations and fails to provide a safe work environment. An employee reports this activity to the Occupational Safety and Health Administration (OSHA).

Getting wind of it, the employer fires them in retaliation for reporting the dangerous working conditions. The employee can pursue a wrongful termination case.

Employers cannot retaliate against whistleblowers for reporting unlawful activity, participating in investigations, or exercising their legal rights. In addition to workplace safety violations, whistleblower protections include reporting your employer for:

• Violating employment discrimination laws
• Sexual harassment
• Government fraud

How To Prove a Public Policy Violation

The employee has the burden of proof in a wrongful termination lawsuit. The employee has to prove all the elements of a wrongful termination claim by a preponderance of the evidence — meaning more than 50 percent.

The elements of a public policy violation depend on jurisdiction. For example, elements could include:

• There is a public policy in place (generally a state or federal statute or regulation)
• The employee’s conduct was motivated by the public policy
• Terminating an employees would jeopardize the public policy
• The employer did not have a business justification to override public policy

As in any legal action, it’s wise to gather evidence and keep track of when events occurred. “The closer in time that your protected activity occurred to the employer’s adverse action against you, the stronger the case for wrongful termination,” says Pulaski.

“Of course, cases do exist, at least in California where I practice, where the gap can be four or five months, or potentially even longer, and still give rise to a claim for wrongful termination in violation of public policy. So even if something happened months ago, that may not defeat a claim for wrongful termination, but the claim will be strongest when the protected activity happened close in time to adverse action.”

Damages in a Wrongful Termination Claim

If a jury believes the employer fired the employee in violation of public policy, the employee can recover compensation.

Potential damages vary depending on the individual circumstances. Potential damages include back pay, front pay, emotional distress, punitive damages, and attorneys’ fees. Talk to your employment attorney about how much you can recover in a wrongful termination case.

Get Legal Advice and Know Your Legal Protections

There is a limited time to file a wrongful termination claim against your employer. If you wait too long, you may lose your chance to recover compensation. Contact an experienced attorney about your legal options after getting fired or laid off.