Your Rights When Losing or Leaving a Job

If you're in the midst of losing or leaving your job, you're likely asking yourself what your rights are. Under such circumstances, your rights may be determined by the nature of your relationship with your employer, the manner in which your employment is coming to an end, and the reasons that your employment is ending.

Continue reading to learn more about your rights when you are terminated from your employment or you resign.

Your Rights Under Your Employment Contract

Your first source of rights is the contract between you and your employer. You might think that you don't have a contract, but under the law, all employment is contractual in nature. This simply means that there is an agreement between you and your employer under which you perform services.

The contract can be written, but most employees don't have formal written contacts. Some employees may receive an offer letter, which they sign and return to their employer. Many employees reach a verbal agreement with their employer. And for still other employees, the agreement can be found in the actions of the employer and employee during the employment.

Whether the contract is a formal written agreement or an understanding that develops over time, the key question is this: What did you and your employer agree to do, and has the employer lived up to its end of the bargain?

What Are My Rights Under the Contract?

Under the simplest agreements, you agree to perform services for the employer, and the employer agrees to pay you certain wages and benefits. Under the law, your final pay is due on your last day or soon thereafter. If your employer has failed or refused to pay you in a timely manner, you have a claim for such pay.

Your employer may have also agreed to pay you benefits like accrued and unused vacation pay or paid time off (PTO) or severance pay. Again, if your employer has failed or refused to pay you as agreed, you have a claim.

Do you have a contractual claim as a result of the termination itself? That's a more difficult question. Some written employment contracts have a provision that the employer may only terminate the contract for "good cause" or a "good reason." If the employer terminates the contract for some other cause or reason, you have a claim.

Some employees work under a union contract — or collective bargaining agreement — between the employer and the union. Under many such agreements, employees can only be fired for good cause. If you are employed under such an agreement, you may have a grievance if the employer fires you without good cause.

But what if you don't have a contract or collective bargaining agreement that limits the employer's right to terminate you? What are your contractual rights? The answers to these questions can be found in the doctrine of "at will" employment.

What Is "At Will" Employment?

If you don't have an agreement that you will only be terminated under certain conditions, chances are you are an "at will" employee. In the absence of an agreement limiting the employer's right to terminate the employment, the employment is presumed to be "at will" in every state but Montana.

"At will" employment means that you and the employer are each free to end the employment at any time. This means that the employer can terminate you for a good reason, a bad reason, or no reason at all. It also means that the employer does not have to give you advance notice of the termination.

If you are an "at will" employee, and your employer fires you from your job, you will not have a contractual claim for the termination. This is true even if your mom, your best friend, and the clerk at the corner convenience store all agree that your termination was unfair.

Your Rights Under Federal and State Laws

The fact that you may not have a contractual claim does not mean that you do not have any claim. You may have other rights that your employer violated by firing you.

There are many federal and state laws that limit an employer's right to terminate its employees. For example, you may have a claim if your employer fired you because:

• Of your race, color, religion, sex, gender identity, sexual orientation, pregnancy, national origin, age, disability, or other protected characteristic
• You met with a union representative or encouraged other employees to support a union
• You complained about unsafe working conditions
• You reported illegal activities in the workplace
• You asserted the above rights or other rights that you have under law

There are a large number of claims that you might have, depending on the state in which you worked and the circumstances under which you were fired. You may also have a claim if your employer forced you to quit because of a protected characteristic or activity.

To find out if you have a claim under these federal or state laws, contact an experienced employment lawyer.

What Can I Do to Protect My Rights?

First, during your employment, keep any materials that may be relevant, such as employee handbooks, memos, brochures, orientation materials, or any written evaluations of your work. Be careful when taking documents from your employer, however — especially anything that is designated as confidential or for internal use only. Chances are good that your employer will countersue you for wrongfully obtaining those documents. Some whistleblower statutes provide protection against this, but it is important to be cautious.

You can also keep a work journal that records significant employment events, such as performance reviews, commendations, reprimands, salary changes, or even informal comments of approval or disapproval. Always record the date, time, and location of these events, as well as who was present at the events. Even if you don't want to challenge the legality of your firing, you will sometimes need to show that you were fired for reasons that didn't involve your own misconduct. These materials can help immensely with that.

Always document the circumstances under which you were fired. This includes who you talked to, what they said, and any accompanying conduct by both parties. It can be helpful to write emails to preserve a record, and make sure to make copies of any relevant emails, as well.

Finally, ask to see your personnel file. Most states require employers to make this available to you on request. Copy, review, and inventory your file. This helps document whether other things were added to the file at a later date in an attempt to justify your termination after the fact.

Have an Attorney Help You With Your Claim

Even in states where employment is considered "at-will," employers don't have the right to discriminate or retaliate against employees. If you've been terminated and aren't clear on the reason why, or suspect discrimination or retaliation, you may want to talk to an employment lawyer.