A Look at Wrongful Termination
To put it simply, wrongful termination occurs when an employer terminates a person’s employment contract for reason(s) that are illegal or violate the agreement between the two parties. Wrongful termination is illegal in the United States, and it’s protected under the Title VII of the Civil Rights Act of 1964, Age Discrimination in Employment Act of 1967, Fair Labor Standards Act, Oklahoma Anti-Discrimination Act (OADA) and/or Oklahoma Wage Payment and Collection Act (OWPCA).
The common reasons that may lead an employer to terminate a person’s contract while violating the law include:
• A person being terminated because of their race, ethnicity, sexual orientation, disabilities, abilities to bear children, marital status, involvement in the local government , or religion.
• A person being terminated without cause or without receiving a "reason why" notice.
• A person being terminated for reporting or opposing an illegal behavior of another employee or their employer.
• A person being terminated after they join or become involved with a labor union; it is illegal to terminate someone for joining a labor union.
Although the general consensus on employee contracts is "at-will," meaning you have the freedom to leave a job whenever you want, but also that your employer has the same freedom, there are exceptions to this clause of employment. Exceptions include discrimination, being fired for filing a good faith complaint regarding some aspect of your employment, special written or verbal contracts between you and the employer, and whistleblowing. The laws that protect and govern employment are extensive and nuanced. Common law, essentially judge-made law that is derived from custom and judicial precedent, also plays a large role in employment law. A closer examination of these laws can be found in the Oklahoma Bar Association’s Guide to Employment Law.
Assessing Your Case
To determine whether you have a valid claim for wrongful termination you need to consider whether you are an at-will employee and what your employment contract provides, if you have one. You should also consider the circumstances surrounding the termination. Was it abrupt? Were you guaranteed not to be fired for a specific length of time? Did your employer provide false performance reviews to document the reason for the termination? A contract may have a specific duration, or even just a specific event that triggers termination, such as changing jobs or receiving a promotion. An employer cannot just terminate for any reason during the term of the agreed upon duration or just terminate at random as long as this time period is in place. There are also implied promises that may arise out of conduct on behalf of the employer which could contradict the termination. A termination from a youth soccer league where you have volunteered for a decade and your son plays every season could not be justified by an alleged one hour close personal friend-of-the-manager meeting with your son. You are not really asking too much to expect a little notice if your son is going to lose his volunteer coach and get a new one. Also, these new volunteer coaches could go through extensive training that goes out the window if not passed on. On special circumstances like this one, conduct of the employer can negate an at will termination. If the termination was abrupt, that is also a factor to be weighed. If your employment has been sporadic for months at a time that could weaken your claim. However, if you are regularly employed and then suddenly terminated without warning, that could be very powerful. If you were awarded employee of the month 3 times in a row and then suddenly abruptly terminated that is also an indication of false enforcement. Performance reviews along with a history of positive or negative remarks will also be important. If you were not provided a copy of your performance review and consider it defamatory then you may have a case for slander. If the termination seemed to come out of nowhere and would have financially ruined you, there is a case.
What Do You Need to Know Before Suing?
After you’ve determined that you’ve been terminated for an unlawful reason (or you know you were terminated for an unlawful reason), your first step is to gather all relevant evidence as soon as you can.
At the very least, you should review your employment file to see if you can find any written explanation for why the employer fired you. You should also consider whether you have received any written warnings about your work performance. In some cases, you may be able to come up with materials that help prove your case.
Next, you need to consult with an employment lawyer. They can help you determine whether you have a solid case against your employer and whether you should sue or pursue other options. You also need to bring all relevant medical records from your doctor regarding your condition (if you are claiming a disability), as well as copies of any emails, text messages, or other communications you received from your employer. Be sure to bring a chronological list of any other important dates as well.
Finally, it is helpful to understand the statute of limitations appropriate for your specific situation. In California, there is no set statute of limitations for wrongful termination claims. However, the California Department of Fair Employment and Housing (DFEH) has a 3-year statute of limitations for filing a complaint against your former employer. There are also various laws that have 1-year or 2-year statutes of limitation.
What to Know About Filing a Lawsuit for Wrongful Termination
This is the lawsuit: "Complaint for Damages." In the complaint, you put down that you’re suing your ex-employer for the legal wrongs that they have committed against you. Depending on the legal theory under which you are suing, the complaint will set out the supporting facts. You’ll also set out what you are asking for, which is potentially money and also non-monetary types of remedies. You may ask to be reinstated if you were terminated and you feel that that was an improper termination. You may ask for an order that your old job be kept open for you, that you be given reasonable accommodation to return to work, anything like that. You can also ask for attorney’s fees, depending on the legal theories you pursue. These causes of action eventually turn into money.
The jury potentially decides two types of money damages. The first is economic damages. That’s all the money that you lost financially. If you worked through an independent agency, your lost wages may only go back for two years prior to when you filed your lawsuit. Then you can get future earnings and future "lost earning capacity." That’s money to compensate for the fact that you may not earn as much money in the future as you otherwise would have. Considerations include whether you are going to change careers, whether you have had time to find another job, things like that. It’s not as complicated as it sounds, especially if you have an experienced trial lawyer on your side. The second type of money damages are noneconomic damages. Those generally go to compensation to you for the harm done to you by your employers. Things like emotional distress, embarrassment, humiliation, loss of sleep, pain in the neck, whatever it is. It’s not a defined formula. These damages can be higher or lower depending upon what kind of harm you can establish as being caused by the defendant. Generally, there is a jury instruction that says juries should award damages that are meant to be a measure of fair compensation for the harm. It’s kind of squishy and a jury can award a lot or nothing, depending on the facts. That’s the timeline I always tell clients. There’s no law that says the jury has to award something and that’s true. There are other costs, including filing fees. That is determined by the particular court, but it’s usually $435 and you can ask the court to give you a waiver of those costs or it’s possible to have them waived altogether. Serve it. You have to serve your employer with the copy of the lawsuit. You can get a process server. You can have the sheriff serve them. We often hire process servers to do this. They are very good at what they do and very efficient. Write a check to the court for application for waiver of court fees. In all likelihood, your income is low enough that you will qualify for the waiver. It’s easy. You can download an application to have your court fees waived from the court’s website or you can walk into the clerk’s office at the courthouse and get one. On the form, there’s a place for you to say you’re requesting that your court fees for the complaint be waived. You need to file that before your complaint is filed. Include the check and the application, and put your complaint in a large 9×12 envelope. You can either mail it to the clerk of the court or hand-deliver it to the clerk of the court. You’ll get a file stamped copy of the complaint back from the clerk of the court. You can ask the clerk of the court to mail you a conformed copy of the complaint, too.
Possible Results of Filing a Lawsuit
The potential outcomes of a lawsuit can vary widely. If you filed for court, the judge may award your claim in several ways. Recovering damages is a common way to be compensated. The judge may issue an order for an award to be paid to you, or the two of you may end up working out a settlement that does not involve the court. If you do recover some damages, you may be able to recover the following:
Lost Wages – If you lost wages during the time you were terminated or negotiating your eventual release, these wages may be recovered as damages. You’ll need to have proof of the wages you lost as well as an accountant’s analysis showing the present value of the losses. Often times, you’ll be required to mitigate your damages by continuing to look for work until the lawsuit is settled.
Promised Bonuses or Incentives – These are often set in the contract you signed with the company, although you may have been promised an incentive outside of the contractual agreement. You’ll need copies of all information regarding incentives in order to potentially recover them through the lawsuit.
Promised Severance Payments – Many times , the severance package or retirement package offered by your employer may not take into account your employee status under the law. If you were misclassified, you may be entitled to recover additional benefits under the law. When you sue for wrongfully terminating employment, you may be able to recover benefits that were initially denied to you.
Benefits Latent under the law – Some restrictions can be set by states, even when you agree to the opposite. State laws governing wrongfully terminated employment still apply. These laws usually provide for the following:
In addition to compensatory damages, punitive damages may be awarded within established precedents. Generally, punitive damages are reserved for cases where there is evidence the employer was malicious or negligent in their actions during termination. The goal of punitive damages is to punish the wrongdoer and to discourage wrongful conduct in the future. The size of the punitive damages are based on the degree of the employer’s wrongdoing and disregard for the consequences of their actions.
Top Tips for Winning a Wrongful Termination Claim
To maximize your chances of a successful wrongful termination claim, consider the following approaches: Following the above steps may allow you to gather enough suitable evidence to support your claim. If you cannot, you may want to consider hiring an attorney to help. This is particularly advisable if you plan on initiating legal action. An ethical, skilled employment attorney will have no problem gathering the necessary evidence, or dissuading you from pursuing a case that does not have a reasonable chance of success. It is also important that you present a clear, cogent narrative that illustrates how the facts of your case fit under one or more of the types of wrongful termination. This means thinking critically about your case prior to filing a complaint against your employer, considering how best to present the facts, and if necessary, shaping those facts into a compelling story. Lastly, knowing your rights as an employee and the current status of any state or federal laws or guidelines with which your employer had to comply is a good idea. Thus, while bringing evidence together, investigating your employer’s past practices is also a good idea.
Getting Help from an Employment Lawyer
Your best chance at success when suing for wrongful termination is to hire an experienced employment lawyer. Wrongful termination laws are complex, and employers have an army of lawyers truly dedicated to stopping you from winning. An employment lawyer can help you understand your rights and craft a strong legal strategy that establishes negligence on the part of your former employer. He can also help you avoid pitfalls that could ruin your case, such as failing to file a claim within the statute of limitations or making potentially harmful statements to potential witnesses. However, not all employment attorneys are created equal. You need an experienced advocate who knows how the system works. This means you shouldn’t immediately sign the contract presented to you by the first lawyer you find. Instead, do some research before you make your decision, like reviewing bar association records for disciplinary actions and interviewing multiple lawyers about your case.
Finding an experienced employment lawyer isn’t as hard as it sounds. Speaking with family members, friends, and co-workers is a good way to get a referral. Talking with local labor and employment organizations is another solid option to finding a knowledgeable lawyer in your area. Of course, the internet is also a useful tool in this endeavor. The internet offers hundreds of possibilities when it comes to finding an employment lawyer. Even Yelp lists lawyers who specialize in wrongful termination.
Your relationship with your lawyer is an important one. After your case has been taken on, you will have regular meetings in which you will discuss your legal concerns and other pertinent issues. In addition, you will have the opportunity to ask questions, discuss your case, and approve any proposed decisions. Lawyers often give clients updates on their cases, so be sure to tell your lawyer what method of communication you prefer, whether by phone or email. You should be able to contact your lawyer if you have a question or a concern. Communication is key, and a good employment lawyer makes sure to keep you updated about your employment lawsuit.
Commonly Asked Questions
Here are some questions that I often hear from employees concerned that they’ve been wrongfully terminated from their jobs.
Q: Do I need to hire a lawyer to sue for wrongful termination?
A: No. You can bring a wrongful termination claim yourself in the state court without a lawyer. But, unless you have legal knowledge and training it’s not a good idea. You’ll be held to the same standards as an attorney in the courtroom and on the legal paperwork. You’ll also have the same burden of proof with the heavy requirements of the discovery process and judges tend to look unfavorably on employees who try to handle their case completely on their own. You have a much better chance of success when you at least have a lawyer helping you. Meeting with an employment attorney for a free consultation is the first step.
Q: Will my employer retaliate after I sue them?
A: If your employer has already terminated your employment, and you provide valid and verifiable evidence to the court, it is illegal for your employer to retaliate against you after the fact. If you have an employment contract with your employer for a set period of time, they would break that contract with good reasons if they took retaliatory actions after the lawsuit. If they did take retaliatory actions, it would weaken your case substantially. The court can also award you back wages if your employer terminated your employment and those wages are not covered in your contract.
Q: What do I do about retaliatory actions from my employer after I’ve sued?
A: First , don’t panic! Document every action your employer takes immediately by writing down the details of the incident, time, date, and who was involved. If your employer threatens you in person or in writing, save those documents or recordings. You’ll need to be able to prove that your employer retaliated against you in court. Your lawyer can help frame the details of what happened more legally factual for court.
Q: Can I be sued for wrongful termination?
A: Usually no, but there are some exceptions. For example, if your contract stated you are an at-will employee, which means that you are free to quit or the employer can terminate you at any time, your employer has not done anything wrong in terminating your employment. If your contract specifies a cause or at-will employment with certain caveats, you might be able to sue your employer for wrongful termination if you were terminated without cause.
Q: Is it illegal to fire someone for being a dependent of a member of a labor union?
A: Yes, it is against the law to fire someone for being a dependent of a member of a labor union. However, that same protection does not extend to union members themselves. Your independent contractors, freelancers, and self-employed individuals are not legally protected from being terminated for union activities. Your employer may only fire you if they can prove that your union membership interferes with your job performance or attendance. Otherwise, they may be violating your civil rights under Title VII of the Civil Rights Act.
