SPARKY: TESTING THE WATERS

Ten Things to Think About: Wrongful Discharge

Do you know what it means to be "wrongfully discharged" from employment? Do you know that there are many, many things employers can do to perhaps inadvertently expose themselves to a wrongful discharge suit? Do you know the steps that must be taken to bring a wrongful discharge claim? Do you know that employees can receive many different types of damages if they have been wrongfully discharged?

1. Although many employment relationships are "at-will," meaning that either the employer or the employee may terminate the relationship at any time with or without reason, that does not mean that employers can act in a discriminatory manner. If an employer terminates an employee, even one who is "at-will," in violation of federal, state, or local anti-discrimination laws, it can face serious legal troubles.
2. Federal anti-discrimination laws protect employees from being discharged or otherwise penalized with respect to the terms and conditions of employment on the bases of race, color, national origin, sex, religion, disability, pregnancy, and age. State laws may mirror these categories of protections and may also expand upon them.
3. Not all wrongful discharge claims are discrimination-based. If an employee is given a contract of employment, either expressly or impliedly, and is terminated before the expiration of, and in violation of, that contract he or she may be able to bring a claim for wrongful discharge and breach of employment contract.
4. Wrongful discharge suits may also be brought in situations where the employer has retaliated against an employee for exercising a right that is supported by public policy within the jurisdiction. For example, if an employee is terminated because he or she reported the employer to a governmental body for violation of workplace safety laws, the employee may be able to successfully bring a wrongful discharge lawsuit.
5. If an employee refuses, at the demand of the employer, to perform an illegal act and is subsequently terminated, there may be a wrongful discharge cause of action. For example, if a construction employer demands that an employee perform work at a height without safety ropes, and the employee refuses and is thereafter fired, they may be able to bring a wrongful discharge claim.
6. If an employee is terminated for taking time off under a law which gives him or her a legal right to have that time off, such as time off for voting or military service, he or she may also have a wrongful discharge cause of action.
7. An employer who has not followed specific disciplinary and termination policies that are in place can also face a wrongful discharge suit. For example, if an employer has a handbook that states that employees are entitled to receive two written warnings for misconduct or poor performance before they are terminated, and an employee is terminated after receiving only one verbal warning, that employee may be able to successfully bring a wrongful discharge action.
8. If you are the victim of a wrongful discharge due to your membership in a protected class, there are some situations in which you cannot immediately bring your employer into court. Instead, under most federal laws you must first file a charge of complaint with the Equal Employment Opportunity Commission (EEOC). Similarly, if you are seeking the protection of state anti-discrimination laws, you must file a charge or complaint with the state or local equivalent agency. Make sure that you review and understand the legal requirements you must comply with in bringing a wrongful discharge claim.
9. Depending upon the situation, damages available to wrongfully discharged employees can include back pay, promotion, reinstatement, front pay, compensatory damages, required reasonable accommodations, injunctive relief, punitive damages, and attorneys' fees.
10. Given the myriad of ways in which an employer can wrongfully discharge an employee, the number of reasons (whether legal or not) that an employer may give for discharging an employee, and the significant damages that may be awarded, it is a good idea for both a terminated employee and an employer to retain counsel. An experienced attorney can help sort out the various issues and protect the rights and reputations of their client, whether the client is the employee or the employer.

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Wrongful dismissal

Wrongful dismissal (also wrongful termination or wrongful discharge)is an idiom and legal phrase, describing a situation in which an employee's contract of employment has been terminated by the employer in circumstances where the termination breaches one or more terms of the contract of employment, or a statute provision in employment law. It follows that the scope for Wrongful Dismissal varies according to the terms of the employment contract, and varies from jurisdiction to jurisdiction. Note that the absence of a formal contract of employment does not preclude Wrongful Dismissal in jurisdictions in which a de facto contract is taken to exist by virtue of the employment relationship. Terms of such a contract may include obligations and rights outlined in an employee handbook.

Examples of wrongful dismissal might include:

• dismissal without going through a contractually mandated dismissal process, which might involve an escalating series of warning letters, &c, where grounds for dismissal are not such as to meet the test for summary dismissal.
• dismissal for a wrongful cause, for instance in a circumstance in which a dismissible action is falsely attributed to an employee.
• illegal discrimination (including cases where another "sham" cause is stated).

Wrongful dismissal will tend to arise first as a claim by the employee so dismissed. Many jurisdictions provide tribunals or courts which will hear actions for wrongful dismissal. A proven wrongful dismissal will tend to lead to two main remedies: reinstatement of the dismissed employee, and/or monetary compensation for the wrongfully dismissed.

A related situation is constructive dismissal, in which an employee feels no choice but to resign from employment for reasons imposed by the employer.

One way to avoid potential liability for wrongful dismissal is to institute an employment probation period after which a new employee is automatically terminated unless there is sufficient justification NOT to do so. The dismissed employee may still assert a claim, but proof will be more difficult, as the employer may have broad discretion with retaining such a temporary employee.
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