If you've recently been fired or laid off, you may be wondering whether you have any legal claims against your employer. Many fired employees don't: Because employees are generally presumed to work "at will," they can quit at any time, and they can be fired at any time, for any reason that isn't illegal. (See Nolo's Employment At Will: What Does It Mean? for more on how at-will employment works.) So, for example, an employee who is fired for poor performance, attendance problems, or misconduct -- or even for just being a poor fit or "not working out" -- generally won't have any recourse against their employers.
This doesn't mean that every firing is legal, however. Even at-will employees can't be fired for discriminatory reasons, in retaliation for reporting harassment or other wrongdoing, or because they exercised a legal right, for example. In this situation, an employee should consider consulting with an employment attorney.
What Is Wrongful Termination?
Wrongful termination is a catchall category that refers to any illegal reason for firing an employee, such as:
- Discrimination. It's illegal to fire an employee because of race, color, national origin, religion, sex, disability, genetic information, or age (if the employee is at least 40 years old); state and local laws often protect additional characteristics, such as marital status, sexual orientation, and gender identity.
- Retaliation. An employer may not fire an employee because the employee complained of illegal behavior, such as harassment, discrimination, workplace safety concerns, wage and hour violations, and so on.
- Violation of public policy. In many states, it's illegal to fire an employee for reasons that most people would find morally wrong. For example, an employee who is fired for exercising a legal right (such as the right to vote), refusing to commit an illegal act (such as lying to government auditors or mislabeling company products), or reporting wrongdoing (such as accounting fraud) may have this type of legal claim.
In addition, an employee may have a claim for breach of contract. Not all employees work at will. If an employee has a contract agreeing that the employee may be fired only for certain reasons (such as committing financial malfeasance or gross misconduct), the employer may fire the employee only for those reasons. Otherwise, the employee may have a claim for breach of employment contract.
When to Consider Talking to a Lawyer
If the circumstances of your firing suggest that it might have been illegal, you may want to consult with an employment lawyer. A lawyer can review the facts and assess whether you have any potential legal claims. If so, a lawyer can help you think through what you want to do (if anything) to assert your rights. For example, you might want to try to negotiate a severance package, demand a settlement, or file administrative charges or a lawsuit against the employer. On the other hand, you may decide it makes more sense just to move on. But the only way to know for sure how strong your claims are and what options you have is to talk to a lawyer.
It's especially important to consider a legal consultation if you are asked to sign a waiver or release of claims, in which you give up your right to sue the employer. Many employers require employees to sign this type of agreement as a condition of getting severance (or getting a better severance package). Once you sign a release, it's very difficult to undo -- even if you later discover that you have valuable legal claims against the company. Before you sign, you'll want to know what claims you're giving up and what they might be worth.
Here are some situations that should prompt you to consider getting legal help:
- Statements or actions suggest that you were fired for discriminatory reasons.
- You recently revealed that you have a protected characteristic (for example, that you have a disability or are pregnant).
- You recently filed a complaint of discrimination or harassment.
- You recently complained of other workplace wrongdoing, such as workplace hazards or shoddy accounting practices.
- You recently exercised a legal right, such as voting or taking Family and Medical Leave.
- Your firing changed the demographics of your workplace (for example, because you are the only woman in your department or the only manager who isn't white).
- You are just shy of vesting or receiving certain benefits, such as vesting stock options or collecting retirement money.
- You have an employment contract limiting the employer's right to fire you.
In any of these situations, your firing may have been illegal -- or it may not. An attorney can help you sift the facts, sort out your claims, and decide how to proceed.