What It Takes to Prove Wrongful Termination

Termination from a job is stressful, but it can also raise serious legal issues when it stems from an illegal reason. Even in “at-will” employment situations, an employer cannot terminate someone in retaliation for protected activity, discriminate based on race, gender, or disability, or breach a contract.

Employees considering a wrongful termination claim must understand the burden of proof, carefully preserve evidence, and know what damages they may seek. A well-prepared case can provide both financial recovery and legal accountability.

Termination can be wrongful when “an employer terminates an employee for an illegal reason or for a reason that violates clearly expressed public policy of the state,” says Ian Kalmanowitz, an employment law attorney at Cornish & Dell’Olio in Colorado Springs.

For legal help in your situation, speak with an experienced wrongful termination lawyer.

What Do You Need to Prove in a Wrongful Termination Case?

Thanks to the doctrine of at-will employment, there are many legitimate reasons for termination.

“Personality conflicts, poor attendance (that is unrelated to a medical condition or protected leave), and poor performance are the most common lawful reasons for termination,” says Leah VanLandschoot, employment litigator at The Litigation Boutique in Denver.

The Process and Remedy for a Wrongful Termination Claim

Many wrongful termination claims don’t result in full-blown litigation.

“Some are resolved by informal negotiation or a more formal mediation process,” Kalmanowitz says. “Some might lead to litigation. Others might be settled prior to litigation, and some might settle once litigation commences.”

The remedy you seek will depend on the type of claim you file. Remedies generally include lost wages and/or benefits, recovery of non-economic damages (like emotional distress related to mistreatment), and attorney’s fees.

“Punitive damages may also be applicable, depending on the circumstances of the case,” Kalmanowitz adds.

Be Mindful of How Much Time You Have to File a Wrongful Termination Lawsuit

Not every wrongful termination claim shares the same statute of limitations. Employees filing a claim based on discrimination have 300 days to do so, whereas an employee bringing a wrongful discharge tort claim has two years to file.

The differences don’t stop there. A breach of contract claim must generally be brought within three years. “It is important to call an attorney because these statutes of limitations vary so widely. Failure to meet one can be fatal to your claim,” says Kalmanowitz.

To further muddy the waters, claims involving a charge of discrimination must be filed with the relevant administrative agency before a private action can be brought, or your ability to sue is lost, VanLandschoot says.

“It is very important to know what type of case you are going to bring,” adds Kalmanowitz.

Gathering Evidence of Wrongful Termination

Unlawful termination disputes inevitably involve a lot of allegations. Both Kalmanowitz and VanLandschoot recommend keeping track of the circumstances preceding your firing.

“The most important step to take if you think you are being mistreated is to make a formal complaint to human resources,” says VanLandschoot. “Complain to HR as soon as you feel you are being targeted.” You don’t want to be the only one who possesses evidence of improper termination.

Additionally, “Temporal proximity is very important in a wrongful termination claim,” says VanLandschoot. That means the time between engaging in protected conduct and being fired must be reasonable.

The Role of Documentation

To succeed in a case of wrongful termination, an employee must have strong supporting evidence. This evidence validates the employee’s claims against their former employer.

Documentation provides a tangible record of events, decisions, and communications that can substantiate claims of wrongful termination. Courts and regulatory agencies rely on such documentation to assess the validity of claims and defenses.

Consistent and detailed documentation can reveal patterns of behavior or decision-making that may indicate discriminatory or retaliatory motives behind the termination.

Examples of Helpful Documents

Certain types of documentation are more effective than others:

• Third-party documents or direct communications can be persuasive.
• Performance reviews can show whether an employee’s performance was satisfactory or if consistent issues were leading up to the termination. They can also show hints at a hostile work environment, where one employee is evaluated with a different standard than other employees in a similar position.
• Correspondence between the employee and employer can provide context to decisions and reveal any discriminatory or retaliatory language. This is especially helpful in a workers’ compensation claim, where the employee may have communicated with the employer about the injury before filing their claim.
• Records of meetings, memos, or notes from HR can clarify the reasons for termination and whether proper procedures were followed. This is helpful in a sexual harassment claim when the employee could file a complaint with HR, and HR is expected to act.
• Warning letters and disciplinary notices can indicate whether the employee was given fair notice of performance issues or misconduct and whether they were provided opportunities to improve.
• Documentation of attendance can help determine if absenteeism was a legitimate issue or if it was related to a protected activity, such as taking medical leave.

Preserving Evidence

Try to keep the originals of documents. If you do have copies, do not alter the copies in any way. Do not delete portions or edit in any way.

Arrange documents in the order they occurred to establish a clear timeline of events leading up to the termination. Keep physical documents in a safe place, such as a locked file cabinet, and digital copies in secure, backed-up storage systems to prevent loss or tampering.

Scan and store digital versions of important documents to ensure they are preserved and easily accessible.

Using Witness Testimony

There may not always be physical evidence that can support the employee’s wrongful termination claim. This is when witness testimony can be helpful in the corroboration of the allegations. It provides an independent account of the events that supports the employee’s version of events.

It also enhances the employee’s credibility, making the allegations more persuasive. Consistent testimonies from multiple witnesses can reveal patterns of discriminatory or retaliatory behavior, strengthening the case for wrongful termination.

Collecting Witness Testimony

Gathering a wide variety of witness testimony can help create a more comprehensive explanation of the situation. Witness testimony from coworkers, managers, supervisors, human resources personnel, and other individuals with knowledge of the situation can be helpful.

These individuals can provide testimony through a written statement or an interview. Witnesses should be willing to testify and should not feel coerced. When current employees provide witness statements, you may need to maintain their anonymity. Confidentiality ensures they are able to make honest statements without fear of retaliation by the employer.

Challenges of Witness Testimony

There can be some challenges when relying on witness testimony in a wrongful termination case. The first hurdle is credibility. The witness needs to be consistent in their account of events. There is also the potential for that individual to have their own biases.

The witness needs to have information that is relevant to the wrongful termination claim. A coworker could have their own stories of unfair treatment that do not directly support the legal claims being considered.

Proving Discrimination or Retaliation

A wrongful termination claim could be based on discrimination or retaliation.

Discrimination occurs when an employer treats an employee unfavorably due to their membership in a protected class. Retaliation occurs when an employer takes adverse action against an employee for engaging in protected activity, such as participating in an investigation or opposing discriminatory practices.

The employee must prove causation to have a successful discrimination or retaliation claim. Temporal proximity is the ability to show causation by the closeness in time between the protected activity and the adverse action.

Close temporal proximity can support an inference of retaliation, especially when the adverse action occurs shortly after the protected activity. While temporal proximity can be compelling, it may not be sufficient on its own. Additional evidence may be needed to establish causation.

Employer Defenses to Discrimination

An employer has the right to present defenses to the employee’s claims. Being prepared for these defenses helps an employee prepare a more convincing argument. Employers may argue that the adverse action was based on legitimate, non-discriminatory reasons, such as poor performance or violation of company policies.

In some cases, an employer may argue that both discriminatory and non-discriminatory reasons contributed to the adverse action. Even if discrimination was a minor motivating factor, the employee may still be entitled to remedies.

Establishing a Breach of Contract

The majority of workers are at-will employees. However, some employees sign an employment contract. These are written agreements that outline the terms and conditions of the employment relationship. It includes terms like duration, duties, and grounds for termination.

Union employees also work under a type of contract called a collective bargaining agreement. It is a contract between the employer and the labor union on behalf of the unionized employees.

Sometimes, an agreement isn’t a traditional written contract, but is still enforceable. An offer letter with specific terms can be enforceable in court. It would need to include terms like salary, benefits, and job responsibilities. A less common situation is an implied employment contract. The agreement is inferred from the conduct of the employer and employee.

To have a successful breach of contract claim, the employee must first prove that there is a legally valid and enforceable contract. Then, they must show that the employer breached that contract. Finally, the employee must show they suffered damages as a result of that contract breach.

What Damages Can Be Recovered?

The most common remedy awarded in wrongful termination cases is a monetary one. The goal is to make the wronged employee whole for the lost wages they should have been able to earn.

In addition to lost wages, lost benefits will also be awarded. This amount varies based on the benefits the employee should have received, such as health insurance, paid time off, or retirement contributions. Award calculations include back pay and future losses.

While not always available, some wrongful termination cases may allow for emotional distress damages. This includes damages for mental health, anxiety, depression, or other emotional harm resulting from the wrongful termination.

In cases where the employer took an extreme and intentional action, punitive damages may be appropriate. Unlike other damages that are meant to make the employee whole, punitive damages are meant to punish the employer. The goal is to deter similar action in the future.

Many states have enacted laws that govern how attorneys’ fees and court costs are paid. If an employee successfully claims wrongful termination, the employer can be responsible for paying their attorney fees and court costs. The goal is to create equal access to the courts by removing the hurdle of financing.

Why You Should Consult an Employment Lawyer

VanLandschoot’s number one piece of advice to an employee who believes they have been improperly terminated is to seek counsel, and quickly. “If you make an HR complaint after you are called out for something, then it looks like you are the one retaliating. Be the first to act,” she says.

Maintaining a comprehensive record is also key. “Don’t delete anything,” says Kalmanowitz. Keep your text messages, emails, and any other documents that may show evidence of mistreatment.

“Be proactive, but not hyperbolic,” says VanLandschoot. “Not everything you and your employer disagree about is ground to seek legal redress.”

Find an Experienced Wrongful Termination Attorney

Visit the Super Lawyers’ directory of wrongful termination lawyers to find an experienced lawyer in your area for legal advice tailored to your situation.