There are two ways individuals can be classified when referring to employment: “at–will” or “contract.” The “at–will employee” doctrine holds that the employees without a contract can have their employment terminated by either party, at any time, for any reason, with or without notice, provided there is not a written contract for employment. The employer does not have to have good cause to terminate employment. On the other hand, an individual who has an employment contract has an agreement with the employer. The employment contract is a voluntary, deliberate, and legally enforceable document that binds both employer and employee to the contract. Unless the employee signed an employment contract that states the employee cannot be terminated without good cause, it is assumed that the employee is an “at–will employee.”
Many individuals would be surprised to learn that they are an “at–will employee.” Most states have laws establishing employment as “at–will.” Although “at–will” employees can have their employment terminated for any reason, those reasons must be in accordance with state and federal law. Likewise, an employee is free to leave a job at any time for any reason or no reason with no adverse legal consequences. There are limitations on terminating an employee and employees who have been terminated are granted certain rights under state and federal law. For example, an employer cannot terminate an employee based on the employee’s race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability and genetic information.
It’s important to know these rights and limitations and to understand the various methods of insuring yourself if you lose your job.
Even in an “at-will” employment law state, you may be able to seek damages for wrongful–termination, based on the circumstances of your discharge.
Anti–Discrimination Laws. Generally, you cannot be fired in violation of law or of public policy. Your employer cannot terminate you in violation of any federal laws prohibiting discrimination, including the provisions of the Age Discrimination in Employment Act (ADEA), the Equal Pay Act, the Americans With Disabilities Act (ADA), or any other state or federal law prohibiting discrimination in employment. For example, if an employee participates in an investigation regarding discrimination in their employer’s hiring practices, that employee cannot be terminated for doing so.
Whistleblower Retaliation Claims and Wrongful Termination. Although an employer may fire an employee for an array of reasons, taking adverse action against a worker who is engaged in certain protected activities can constitute unlawful retaliation and wrongful termination. An employee who reports a violation of the law by his or her employer is referred to as a “whistleblower“. Federal law protects these employees from retaliation for participating in protected activities, such as reporting unlawful activities or participating in an investigation into the practices of the employer. Some of the most commonly invoked federal protections can be found in the Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Equal Pay Act. Additionally, the following Acts each contain protections for an employee who complains about safety or health hazards caused by an employer:
Retaliation for Failing to Perform Illegal Acts and Wrongful Termination. Similar to the whistleblower protections, employers may not demand employees to perform illegal acts. For example, if an employer knowingly requires workers to ignore safety regulations and subsequently fires the workers, there is a retaliation and wrongful discharge claim.
Depending on the laws of your state, you may be protected against employer retaliation in the event that you report the illegal or unethical act committed by your employer. For example, a school district that fires a teacher who blows the whistle on wasteful pending or unsafe school conditions cannot be fired as retaliation under whistleblower statutes protecting public employees.
Plaintiffs have successfully alleged that they have been wrongfully fired when the following facts or circumstances were involved:
Regardless of whether you are seeking a new job voluntarily or because your employment was terminated, copies of the following documents will help you protect your future interests and employment potential:
Federal law provides workers with basic rights upon termination:
You should look to your employment contract, employee handbook or state law to recover any accumulated sick leave, bonuses or vacation pay (assuming you are not a federal government employee with contractual rights). You might be able to negotiate a termination contract with your former employer that guarantees you some or all of your accrued benefits in exchange for a waiver of certain future rights. You may also have the right to apply for unemployment compensation.
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