How to Win a Wrongful Termination Claim

No one likes losing a job, and complaining about getting fired can seem like sour grapes. But you do have rights when losing a job and not every firing is legal.

So how do you know if you've been wrongfully terminated? And, more importantly, how do you prove it in court? Here are some legal keys to a successful wrongful termination claim:

Overcoming the At-Will Presumption

"At-will" employment means that the employer can terminate your employment for any reason or for no reason at all. Employers don't even need a good reason to terminate you, nor do they need to give you advance warning or notice. Every state but Montana presumes employment is at-will, absent some evidence to the contrary, like an employment contract.

But there are some common law exceptions to at-will employment that could constitute wrongful termination:

• Public Policy Exception: An employee is wrongfully discharged when the termination violates an explicit, well-established public policy of the state, like being terminated for filing a workers' compensation claim or for refusing to engage in illegal activity at the request of an employer;
• Implied Contract Exception: An employee is wrongfully discharged when an implied contract is formed between an employer and employee, like an employer making oral or written representations to an employee regarding job security or procedures that will be followed when discipline is imposed;
• Covenant of Good Faith Exception: An employee is wrongfully discharged when the termination violates a covenant of good faith and fair dealing, meaning either that employer personnel decisions are subject to a "just cause" standard or that terminations in bad faith or motivated by malice are prohibited.

Not every state recognizes each exception, and the basis of your wrongful termination claim could depend on where you live.

Determining Discrimination

Just because an employer can fire you for no reason, doesn't mean they can fire you for a bad reason. And discrimination is one of those bad reasons. Federal employment law prohibits employers from terminating employees on the basis of race, color, national origin, sex, religion, disability, pregnancy, or age. These laws have also been read to prohibit discrimination on the basis of sexual orientation or gender identity.

If you think you've been wrongfully terminated based on one of these protected categories, the place to start is the Equal Employment Opportunity Commission (EEOC). The EEOC is the federal agency in charge of handling federal employment discrimination claims. One of the first steps for taking legal action in a wrongful termination case would be to file a complaint with the EEOC.

Federal law also prohibits harassment based on age, disability, gender, genetic information, national origin, race, religion or sex. If your employer or another employee has harassed you by making offensive or insulting comments or unwelcome sexual advances, you may have a claim for wrongful termination.

Reading Retaliation

Employers also can't retaliate against an employee for engaging in certain protected activities. Just some of the activities for which you can't be fired for include:

• Informing an employer about harassment or discrimination;
• Filing a complaint with the EEOC;
• Taking permitted medical leave or vacation time;
• Participating in an investigation of wage and hour violations; or
• Taking time off to vote, sit on a jury, or serve in the military or National Guard.

Additionally, many states and the federal government have specific "whistleblower" laws to protect employees who report illegal or harmful activities, like violations of environmental regulations, worker safety laws, or securities laws. If you've been fired in retaliation for any of the conduct above, you may have a wrongful termination claim.

Confirming the Contract

As noted above, most employees don't have a specific employment contract. But if you do, your employer must adhere to it, and cannot fire you in violation of the terms of the employment contract. Written contracts and even statements that promise workers job security, regular advancement, or specific termination procedures, can be seen as proof that your employment was not at-will.

For example, an employment contract could specify that you can only be terminated for certain specific reasons, like failing to meet performance requirements. A firing based on other reasons could be a violation of their employment contract and therefore constitute wrongful termination.

In addition, if an employer handbook or other policy lists specific procedures for discipline and termination (like requiring a certain number of warnings before termination) the employer may be bound to follow those procedures, even if the employment is at-will. So firing an employee in violation of a company's specific discipline or termination policy could be wrongful termination.

Constructing a Case

Your first steps after being fired can be the most crucial in a wrongful termination case. Most important is not reacting out of anger towards your former employer. Instead, try to get as many details about your termination as possible, such as the reasons for your termination and who decided to fire you. You may also need to request your personnel file.

If you had an employment contract, read it in full and become familiar with its contents. In lieu of a written contract, review any promises made by your employer and document them as best as you can. Request and negotiate a severance package, and confirm all agreements regarding your termination and severance in writing, if possible. The more information you have, and the more of it in writing, the better.

Most of all, if you're considering filing a wrongful termination claim, you should contact an experienced employment law attorney to discuss your case.

Related Resources:

• Browse Employment Lawyers by Location (FindLaw Directory)
• Do I Need a Wrongful Termination Lawyer? (FindLaw)
• Wrongful Termination Settlements: What Can I Expect? (FindLaw)
• Top 5 Ways to Be Wrongfully Terminated (FindLaw's Law and Daily Life)