What Constitutes Wrongful Termination?

Posted by Lawyers for Employee and Consumer Rights - California Employment Attorneys | Jun 03, 2021 | 0 Comments

Wrongful termination can narrowly be defined as the action of an employer who terminates an employee in violation of federal, state, or local laws—or in breach of an agreement or contract with the employee. Yet the interpretation of specific situations can be much broader, far-reaching, and oftentimes complicated, leaving many employees to wonder: Do I have grounds to challenge my termination? There are a wide range of laws under which workers are afforded protection from wrongful termination. Reasons for termination that are considered unlawful include but are not limited to: discrimination, retaliation, medical history, organizing, whistle blowing, criminal violations, citizenship, refusal to take a lie detector test, family and medical leave, harassment, breach of contract, and jury duty.

In fact, wrongful termination suits have skyrocketed over the past twenty years, rising some 260%. More than 40% of these suits were against employers with less than 100 employees, and when these suits go to trial the plaintiff/employee wins more than 63% of the time. The foundational reasons for this major uptick in actions against employers is the result of improved laws protecting employees' rights, giving employees direct access to justice. This message has been amplified by the media, making it increasingly difficult for businesses to be sheltered from their unlawful conduct.

Wrongful termination suits have become so prevalent that employers recognize the importance of carrying liability insurance that covers their inherent and expected unlawful conduct—much like they carry other policies for the eventuality of claims and lawsuits. Why? Because employers understand the inevitability that their actions—whether intentional or unintentional—could very well violate employees' rights.

Many wrongful termination actions are based on the specific and varying characteristics of the individuals getting fired, which in many cases are protected under the law. This reality provides a good rule of thumb for determining if you've been wrongfully terminated: ask yourself this simple question—was I fired because of who I am? Although there are many other reasons that serve as the basis for wrongful termination suits, the above question is a great starting point. In fact, “who I am” in the context of employment and wrongful termination includes meaningful and/or unalterable characteristics such as age, gender, sex, sexual orientation, race, religious beliefs, or nationality. So, if your answer is “yes” to the question: “Was I fired because of who I am?“—then you were probably unlawfully fired.

What About Lawful Termination?

Sometimes it's difficult to determine what constitutes unlawful termination. That's why it might be helpful to first outline the seemingly obvious lawful reasons for an employer to fire an employee:


  • physical violence
  • drug and/or alcohol use (under the influence at work)
  • committing illegal acts at work (theft, embezzlement)
  • falsifying information
  • repeated unexcused tardiness or absenteeism
  • violations of company policies
  • ongoing documented incompetence

Keep in mind that even though these may appear as “lawful” reasons for termination, they're not always hard and fast; as with any area of law, all of it is subject to case specific facts, extenuating circumstances, and further inquiry.

Employee Rights Protected in “At Will” States

In California, and in most states, employment is considered “at will,” meaning that an employer doesn't need a reason for terminating an employee. But employment “at-will” doesn't mean employers can fire employees completely at their discretion. Terminating an employee is not lawful if the termination is in violation of federal or state law, or public policy (or is a breach of contract).

In fact, many employees who are fired (or quit, see “Constructive Discharge” below) don't realize they may have a claim against their employer because their employer's actions might qualify as a wrongful or illegal termination. But an employee's rights are still protected by the law from involuntary dismissal. It's incumbent upon every employer to have an adequately documented and legitimate business reason for any employee termination. Individuals who believe they were fired unjustly can then file a wrongful termination claim against their employer. In California and across the country, laws and cases have become increasingly protective of employees.

Constructive Discharge

Did you know that you don't have to be fired to make a wrongful termination claim? That's right—if your employment conditions and/or environment have been made intolerable, forcing you to quit, your resignation very well could be treated as a termination. This situation is defined as “constructive discharge” and/or “constructive termination” because your employer intentionally “constructed it” and/or knowingly permitted the conditions to occur. An employer does not escape liability because an employee resigned when the reason the employee resigned was motivated by the very conditions created or permitted by the employer.

COVID-19

As is true with almost every aspect of life, COVID-19 has significantly impacted our employment conditions, creating economic turmoil and an atmosphere in which almost any employee or executive might at some point be faced with having their employment terminated—forcing many employees to question the lawfulness of the termination. A recent Forbes headline announced that, “The Coronavirus Is Causing More Employment Lawsuits.” Tom Spiggle, an employment lawyer writing for Forbes, suggested that increased health and safety issues, along with medical and family leave related to COVID-19, are just a few reasons why employees might have been wrongfully terminated. “The coronavirus is almost the perfect ‘workplace agitator,'” writes Spiggle, “in that it's affecting practically everyone and not in a good way. And almost everyone is scared or concerned, whether it's about losing their job, losing their business, losing their home, or losing their life.” Spiggle goes on to report, “With all this uncertainty and added stress, there's been a significant increase in the number of employment lawsuits.”

There is no doubt that the coronavirus pandemic has generated additional workplace rights for employees. Remember, your existing and fundamental rights (as detailed earlier under “who I am”) are not replaced by these additional protections, but rather bolster your employment “bill of rights.”

Don't Assume You're Not Eligible

There's no doubt that getting fired can be

extremely unpleasant and an emotionally charged experience. Carl Van Horn, PhD, is a professor of public policy at Rutgers University and an expert on workforce and unemployment policy. He writes, “Losing a job and being unemployed for a long period of time is a psychological trauma and a financial trauma, and the two are closely intertwined.” According to the American Psychological Association, “Research on unemployment shows that losing one's job is detrimental to mental health—and often physical health—even without serious financial strain.” The APA goes on to report that while psychologists can't solve the economic issues they can absolutely help people cope and manage the mental strain.

But what can help the economic strain is for the wrongfully terminated employee to seek financial justice. Winning a wrongful termination lawsuit can offer the employee satisfaction and resolution.

Don't Hesitate. Don't Wait.

According to Working America, “Every year, more than 20 million U.S. workers get the pink slip—either laid off or fired.” But knowledge is power and employees are increasingly recognizing the circumstances of wrongful termination. Employees have strong rights in the workplace as well as the freedom to speak up. There is a growing movement of employees that are pushing back on employers—a group they far outnumber. Any employee who suspects wrongful termination and acts quickly has an advantage. Statutes of limitation apply to these cases and delays can be detrimental. Bottom-line: the law places limitations on when claims can be brought.

If you believe your termination was unlawful or you're not sure and need advice, take action today and contact us—the experts at Lawyers for Employee & Consumer Rights.

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