You just got fired. At the termination meeting, the human resources manager reminded you that your employment was “at will.” You vaguely recall seeing that term when you were hired, and signing an acknowledgment that you were aware of your at-will status. You feel that you were fired under suspicious circumstances. But, because you were “at-will,” you just have to suck it up and move on, right?
Not necessarily. An employment lawyer may find that your termination falls into an exception to your employer’s right to fire you at will.
At-will employment is the norm in the United States. It is perfectly legal for an employer to 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?) Many employers take additional steps to reinforce 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. 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. (For more information about how a lawyer evaluates a case involving a “for cause” termination, see Will a Lawyer Take Your Wrongful Termination Case If You Were Fired For Cause?) 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.
An employer can legally fire an at-will employee for a reason that seems unfair or unjustified, and can even 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, even if the employee worked at will. 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?)
Here are the key factors a lawyer will consider when assessing whether the termination of your at-will employment was illegal and, ultimately, whether the lawyer wants to take your case.
One of the big questions asked by any lawyer assessing a possible employment termination case is: Why was the employee really fired? 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 performance problems the employer claims you had, or the same productivity issues or record of tardiness? If not, are there facts that suggest the employer treated you differently based on a legally protected characteristic (such as your gender, race, disability, ethnicity, age, sexual orientation, and so on)? These are the questions a lawyer would ask to start uncovering the real reasons for your termination.
The lawyer will be looking for evidence that the real reason the employer fired you was an illegal one, and any other reason given 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.
If you recently uncovered illegal workplace conduct, made an internal complaint (or a complaint to an outside agency), 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 (like complaining about illegal harassment or blowing the whistle on other illegal activity by the employer), you might have a retaliation case. (For more information about retaliation, see Workplace Retaliation: What Are Your Rights?)
The lawyer will want to know if you have copies of documents, such as the employer’s policies, any write-ups or other disciplinary documents, performance reviews, and any documents that might relate to the employer’s treatment of members of your protected group (such as women, people over the age of 40, or people with disabilities).
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 if the employer paid you everything you were owed when you were fired. Even if the employer acted legally in terminating you at will, it must have paid you all amounts due within a short time after your termination. This payment includes all earned pay, all accrued and unused paid vacation time (if your state requires that this be paid out), all overtime earned, and any other amounts due.
A lawyer evaluating your case will assess the financial losses you have suffered. In a wrongful termination case, the types of damages that you may recover include lost pay, lost benefits, emotional distress damages in certain cases, and punitive damages (if available). You might also be entitled to collect attorney fees from the employer if you win.
For more information about damages, see Damages in a Wrongful Termination Case.
The lawyer will ask whether you know of any witnesses who have information about the termination or events leading up to it. This might include, for example, a coworker who saw your manager harassing you or the HR representative who warned you not to file a complaint with an outside agency. It’s a good idea to put together a list of witness names and contact information to bring to the lawyer.
The 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 jury.