What It Takes to Prove Wrongful Termination

Most workers are at-will employees who can be fired for any reason or no reason at all and without advance notice.

While being fired feels rotten, it is not patently improper. Thanks to the doctrine of at-will employment, there are myriad 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.

There are, however, some exceptions to this rule, and they form the basis for a wrongful termination claim. 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.

Protected Characteristics Under Federal and State Anti-Discrimination Laws

“Employees cannot be terminated based on gender, race, religion, national origin, disability, age, marital status, sexual orientation or gender identity,” says Kalmanowitz. “Marital status is newly protected under Colorado state law as of August 7, 2023.”

When the basis for termination is retaliatory, employees also have a case to make. “One of the original wrongful termination cases involved retaliation against an employee who filed a workers’ compensation claim,” VanLandschoot says.

Other common examples of wrongful termination are firings that stem from “refusal to engage in an activity that would violate the law or public policy, or refusal to follow a directive to commit a fraudulent act,” says Kalmanowitz. For example, if an accountant is instructed to “cook the books” but refuses to do so and is subsequently fired, strong grounds for a wrongful termination claim exist.

Gather Evidence to Bolster Your Case 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.

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.

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. Some 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.

For the Best Outcome, Be Proactive and Seek Counsel Early

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. To learn more about this area of law, including legal protections for employee rights, see our overviews of wrongful termination and employment law.