You walk nervously into an unscheduled meeting with your boss and the human resources manager, who look grim. The boss tells you that you haven’t met your performance goals, so the company is letting you go. There’s no need to talk to an attorney, right? You were fired for cause, so your next steps should probably involve visiting the unemployment agency and some good job search websites.
Well, you might want to rethink your strategy. There’s nothing wrong with looking for a new job, but don’t be too quick to assume you have no legal claims against your former employer. Even employees who are fired for cause might be able to prove wrongful termination, in the right circumstances.
The only way to know for sure is to consult with an attorney. Here are some of the factors a lawyer would consider in evaluating your potential case.
Most employees in the United States work at will. An employer may legally fire an at-will employee for any legal reason or no reason at all. However, even an at-will employee may not be fired for an illegal reason. (For more information about at-will employment, see Employment At Will: What Does It Mean?)
In most states, the law presumes that employees are at will, unless they have a contract with their employer changing this status. Many employers take additional steps to protect their right to fire an employee at will by, for example, stating in their employee handbooks that employees work at will or requiring employees to sign an agreement that they work at will.
Employers don’t have to give a reason for firing an at-will employee. However, many employers choose to do so anyway. When an employer gives an employee a reason for firing, it’s referred to as a termination “for cause.” This contrasts with a termination where no reason is given, including “at-will” terminations.
Sometimes, an employer is legally required to give a reason for firing an employee. State law may allow the employer to fire employees only for cause, or the employee may have an employment contract limiting the employer’s right to fire. However, unless a contract or law restricts the reasons for which the employer may terminate the employee, the employer may fire the employee for any legal reason.
Illegal Reasons for Termination
It's not illegal for an employer to fire an employee, even for a reason that seems unfair or unjustified. And, an employer can legally lie about the reason for termination. But, the employer cannot legally fire anyone for a reason that breaches a contract or violates the law. If the real reason for terminating an employee is discrimination, retaliation, employee whistle-blowing, or other protected activity, the termination is wrongful. (For more information about wrongful termination claims, see Wrongful Termination: Was Your Firing Illegal?)
How Lawyers Assess Wrongful Termination Cases
Here are the key facts a lawyer will consider when assessing whether your allegedly “for cause” termination was illegal and, ultimately, whether the lawyer wants to take your case.
Was There a Contract?
If you have an employment contract that limits your employer’s right to fire, your employer must comply with the contract’s requirements. If, for example, your contract says you can be fired only for “gross misconduct” or “financial malfeasance,” then your employer can’t fire you for poor performance.
Most employees do not have written employment contracts (or at least, contracts that promise anything other than at-will employment). But if you have a contract that limits the grounds for termination, any other basis for firing is a breach of contract.
Was There a Policy?
At times, the employer’s handbook or other policies create a kind of contract between employer and employee. For example, if your employer had a progressive discipline policy that it followed with other employees but didn't follow with you, that may be a breach of an implied contract.
For more information about progressive discipline policies, see What is Progressive Discipline for Employees?
Were Other Employees Treated Differently?
Was the reason given the true reason for termination? This is one of the big questions asked by any lawyer assessing a termination for cause. The lawyer wants to know whether the employer treated you as it treated similarly situated employees. That is, did the employer terminate other employees who had the same stated performance problems? If not, are there facts that suggest the employer treated you differently based on a legally protected status (such as your gender, race, disability, ethnicity, age, sexual orientation, and so on)? This is the beginning of an investigation that the lawyer would conduct into a possible discrimination claim.
The lawyer will be looking for evidence that the reason the employer gave for firing you is false. Under the law, a false reason for a termination is called a “pretext” when the employer uses it to hide the true -- and illegal -- reason.
Were You Retaliated Against?
If you recently made a workplace complaint, uncovered illegal activity at work, or otherwise “blew the whistle” on your employer, the lawyer will be looking for a potential retaliation claim.
If the reason you were treated differently is because you took some protected action (such as reporting illegal harassment or reported illegal activity to a government regulatory agency), you might have a retaliation case. (For more information about retaliation, see Workplace Retaliation: What Are Your Rights?)
Do You Have Documentation?
It’s a good idea to ask for a copy of your personnel file as soon as possible and bring it when you meet with a lawyer. The lawyer will want to know whether the employer documented its reasons for firing you prior to the termination. If you were fired for poor performance, for example, do your prior performance reviews raise these problems? If not, the lawyer might start to wonder whether you really were terminated based on performance or for another reason.
The lawyer will also want to know whether you have any documents that might contradict the employer’s stated reason for termination or that might show other (possibly illegal) motives for termination. If you were fired for poor customer service after several straight victories as “employee of the month,” for example, your employer’s justification starts to look pretty flimsy.
Are There Unpaid Wages Due?
The lawyer will want to know if the employer paid you everything you were owed when you were fired. This includes all earned pay, all vested paid vacation that you haven't used, all overtime earned, and any other amounts due. An employer has to pay all amounts due in fairly short order after termination, even if you were fired for a perfectly legal reason.
What Are Your Damages?
A lawyer evaluating any case assesses the financial losses the prospective client has suffered. In a wrongful termination case, the types of damages that a terminated employee may recover include lost pay, lost benefits, emotional distress damages in certain cases, and punitive damages when available. You might also be entitled to collect attorney fees from the employer if you win.
Are There Witnesses and Other Evidence?
The lawyer will ask whether there are witnesses with information about the termination or events leading up to it. It’s a good idea to put together a list of witness names and contact information to bring to the lawyer. And, be sure to bring copies of all relevant documents, including contracts and policies, for the lawyer to review.
Will You Be a Good Witness?
most important witness in any case is the person bringing the lawsuit.
The lawyer will be evaluating you as a potential witness from the moment
you meet. A terminated employee who is clear, concise, organized,
presentable (that is, with a proper, business-like demeanor), and honest
will impress the lawyer as a credible witness who should impress the