Attorneys at Law

Disclaimer: The information contained in this FAQ is provided for general information purposes only and is not intended to be a legal opinion, legal advice or a complete discussion of the issues related to the area of wrongful termination. Every individual's factual situation is different and you should seek independent legal advice from an attorney familiar with the laws of your state or locality regarding specific information.

We are frequently asked whether an employer's termination of an employee's employment may be wrongful and give rise to remedies on the part of the employee. Most of the law of employment is state law. The law of the particular state whose laws govern the employer-employee relationship (generally, the state of the place of employment) would need to be applied to the facts of the case. For this reason, it is necessary to consult an attorney who practices in the state of the relevant employment in order to determine the application of that state's law to the particular facts alleged.

Substantially all states follow the "at will" doctrine. Under this doctrine, an employee's employment is terminable at any time by the employer, without compensation liability past the date of termination, for any reason or for no reason at all. (Similarly, and the legal rationale for this doctrine is that, the employee is also free to terminate his employment at any time.) In the absence of an agreement to the contrary, there is no legal requirement that an employee be discharged only for just cause, and a court will not substitute its judgment for that of an employer in determining whether discharge was appropriate. There is similarly no general requirement that a discharge be "fair" or even undertaken in good faith.

Even in states which follow the "at will" doctrine, there are several exceptions to this principle:

Employment Contract or Substitute. First, if the employee has an employment contract or collective bargaining agreement (or some other express "deal" with the employer, such as the terms of an employee hand-book), those express terms would be applied to determine the employee's rights. In the vast majority of cases, there is no contract nor a substitute for one. Not all states will enforce the terms of an employee handbook.

Some states will recognize a claim based on estoppel. In a typical estoppel claim, the employer assures the employee that his employment is secure (an express assurance is a required element of the claim). In reliance on this assurance, the employee forgoes an offer of employment on better terms from another employer. Following discharge by the first employer, some employees have successfully asserted that they were induced to forgo the second employer's offer by the first employer's assurances and that the first employer should therefore be liable for damages. As noted, not all states permit such claims.

Almost always, in order to negate the presumption of an at-will employment, the claimed contract must contain a "duration" term: an agreement to employ the employee for a specific number of months or years, or to refrain from discharging him or her except on specified conditions. Normally, an offer of "permanent" employment or employment at an "annual" salary merely creates an employment at will.

Discriminatory Discharge. Second, an employee may not be discharged in violation of his or her rights under specific statutes which prevent discrimination on the basis of age, disability, race, religion, gender or national origin.

Note that not all "discrimination" is unlawful. An employer may fire an employee because the employee drinks root beer instead of ginger ale, or because the employee prefers the Cowboys to the Redskins, or because the employee wears colored underwear, or because he or she simply doesn't like or get along with the employee. As long as the discharge is not motivated by a discriminatory motive premised on one of the particular grounds found in one of the applicable statutes, it will not be unlawful--even though it may be "discriminatory." Note that as a result of the application of this principle, it is perfectly permissible to "discriminate" against incompetent or difficult-to-get-along-with employees, or to fire a perfectly qualified employee in order to hire someone the employer likes better, is related to or is sleeping with.

The burden of showing that a particular discharge is discriminatory falls solely on the discharged employee, and he or she may not use statistics alone (e.g., the employer has no Hispanic employees, even though the community is 30% Hispanic) to show discrimination. An employer is able to rebut discrimination charges by showing that it has an overriding non-discriminatory motive (e.g., poor job performance, across-the-board reduction in force, etc.) for the discharge.

Frequently the employer's asserted disappointment with an employee's performance may be a pretext for a discriminatory discharge. The burden of demonstrating the pretextual nature of the grounds alleged is solely the employee's.

Legal Activities. Approximately 11 states have adopted so-called "legal activities" laws. In these states, in addition to the statutory discrimination grounds (age, race, religion, etc.), an employee may not be discharged on the sole ground that he engaged, during non-working hours, in an activity which is itself lawful (such drinking alcohol, belonging to Planned Parenthood, etc.)

Other Matters. A few states recognize other claims for wrongful discharge, such as a "bad faith" termination designed to deprive an employee of accrued sales commissions, etc. Because these principles are not uniform from state to state, an attorney must be consulted in your jurisdiction.

"Whistleblowers". Certain states view as unlawful the discharge of an employee who "blows the whistle" on his or her employer's illegal activities. Again, the burden will fall on the employee to demonstrate that the discharge was improperly motivated.

In all states, a state agency is responsible for processing discriminatory discharge claims brought under both state and federal law. A person who believes that his or her employment was terminated in violation of law should consult with the state's commission on human rights (or whatever it is called in that state); no attorney is required for filing such a claim. The agency will investigate the claim and decide whether a remedy is warranted. In some cases, such as age discrimination under the federal statute, you may not sue in court unless you have already pursued your claim through the administrative agency.

Because the law of wrongful discharge varies from state to state, a person who may have valuable rights affected by such laws should consult with an attorney who specializes in such matters. The statute of limitations for such claims may be short, so if a claim is to be made, it should be made quickly.

Copyright (c) 1996 Hilary Miller