Many employment laws prohibit employers from firing employees for exercising their rights under those laws. Employees are also protected for whistleblowing: reporting that the company has broken laws unrelated to workers’ rights (such as laws regulating consumer protection, product safety, government contracts, or shareholder fraud).
This article explains some of the laws that protect you from retaliation or protect you as a whistleblower, as well as how to make a claim for retaliation or whistleblowing.
An employer retaliates against an employee when it takes action to punish the employee for exercising his or her workplace rights or for reporting a legal violation of workplace laws.
Many employment laws are enforced by employees who come forward to report a problem, such as harassment, failure to pay overtime, or safety hazards. Although there are government agencies responsible for enforcing these laws, these agencies typically don’t conduct random workplace audits looking for violations. Instead, they rely on employee complaints to learn of potential violations.
Even then, enforcement agencies almost never sue employers for breaking the law. Although an agency might investigate, impose a fine, or even make a finding that an employer has likely violated the law, the employee must typically bring a lawsuit to vindicate his or her rights.
Here are some of the most common laws protecting workers from retaliation:
Whistleblowing occurs when an employee reports illegal conduct at work that is not related to workplace rights. For example, you are a whistleblower if you report that your company is cooking the books; engaging in shareholder fraud; producing faulty, dangerous, or mislabeled products; or lying on its tax returns.
An employer may not fire an employee for blowing the whistle on certain illegal activity. Some laws that prohibit certain types of unethical or illegal corporate behavior explicitly protect employee whistleblowers. For example, the Sarbanes-Oxley Act, passed in 2002 to protect investors from corporate financial wrongdoing, includes whistleblower protections for employees who report financial irregularities and shareholder fraud.
Some states also have laws that allow employees to sue their employers for wrongful termination in violation of "public policy." These types of claims may include protection from termination for a variety of reasons that the public would find morally wrong.
However, state laws vary as to the specific type of activity that is protected. For example, some states allow public policy claims only if a state law explicitly provides whistleblower protection (for example, a state law protecting nurses who report unsafe conditions at hospitals).
Other states allow public policy claims whenever an employee reports a violation of a law that was intended to protect the public. You’ll need to talk to an experienced employment lawyer to find out whether you can bring this type of claim in your state for the legal violation you reported.
If you are fired for refusing to engage in illegal behavior, you may also have a wrongful termination claim. For example, if you are fired because you refuse to lie to a government auditor or file a false corporate tax return, you may be able to sue for wrongful termination in violation of public policy.
If your employer fired you for reporting illegal behavior or exercising your legal rights, you may be able to sue for wrongful termination. Below, we explain how to pursue your claim.
Retaliation and whistleblowing claims can be legally complicated. The rules for bringing these claims may vary from state to state, as explained above. An experienced lawyer can help you determine whether you have a claim based on a specific statute or a violation of public policy.
Prepare for your first meeting by creating a timeline of events: what led up to your complaint or your report, when you complained or tried to exercise your rights, and what happened as a result.
To prove retaliation or whistleblowing, you must show that you were fired because of your complaint or report. Timing is crucial: The less time between your complaint and your employer’s negative action against you, the stronger your claim is. You’ll also have to show that the person who decided to fire you knew of your protected activities.
A lawyer will review all of the facts, explain your potential claims, and estimate how much your claims might be worth. A lawyer can also help you decide on the best strategy to vindicate your rights, whether through negotiating with your employer, filing a complaint with a government agency, or going to court.
You may be concerned about how you will pay a lawyer to represent you. Depending on your claims, a lawyer may be willing to take your case on a contingency fee basis. This means the lawyer is paid only if you win, out of the money you receive through a court award or a settlement with your employer.
Some retaliation statutes include an attorneys' fees provision, requiring a losing employer to pay the winning employee’s legal fees. You should receive a written explanation of how your lawyer will charge fees at the outset of your working relationship.
For certain retaliation claims, you may have to file a complaint with a government agency before you go to court. For example, if you were fired for complaining of workplace harassment or discrimination, you will need to first file a charge of discrimination with the Equal Employment Opportunity Commission.
If you want to sue for wrongful termination in violation of the Sarbanes-Oxley whistleblower protections, you must first file a complaint with the Occupational Safety and Health Administration.
Not all retaliation claims are subject to this rule, however. And, for some types of retaliation claims, you may—but are not required to—file an administrative charge before going to court. Your lawyer can help you figure out the requirements for your particular claim in your state.
How much you might collect if you win a retaliation or whistleblowing case depends on the basis and strength of your claims. For most wrongful termination cases, a winning employee can ask for:
In some cases, you might also be entitled to damages for "pain and suffering," for the emotional and physical harm caused by your employer's actions. Punitive damages, intended to punish your employer for particularly egregious misconduct, may also be available.
And, in some whistleblower cases, you might be eligible for a fee or bounty for protecting the public from wrongdoing. (This might be a set amount per violation, a percentage of the total sanction against the employer, or some other amount determined by the statute or the court.)Your lawyer can explain how much you might expect to win in your case.
]]>What surprises many disability recipients is that these policies offer little to no job protection. In many cases, an employer is legally allowed to fire an employee who is receiving disability benefits, although there are some situations in which an individual would have legal grounds to file a lawsuit for wrongful termination.
A federal law known as the Family and Medical Leave Act (FMLA) provides employees with twelve weeks of unpaid leave per year to deal with one's own medical issues or to take care of a sick member of one's immediate family.
Not all workplaces are subject to FMLA, and even in those that are, employees must meet certain requirements to be covered by the law. FMLA applies only to companies with 50 or more employees located within 75 miles of each other, and workers must have worked:
Your employer may not terminate you if you are on FMLA leave as long as you don't go over 12 weeks of FMLA leave per year. When you return from FMLA leave, your employer must employ you in your former position or one that is substantially similar.
If you do exceed 12 weeks of FMLA, even by a day, you run the risk of being terminated for excessive absences. Of course, if you're fired while receiving disability insurance benefits, you'll still continue to receive benefits according to the terms of your policy.
Although FMLA leave is unpaid, an employee can receive short-term disability or long-term disability benefits while on FMLA leave. And, in fact, many employers require you to use your allotted FMLA time while you're on disability. For many disabled employees, FMLA is the most important form of job protection they enjoy.
Finally, remember that FMLA is a federal law, and that some states will have more generous policies regarding unpaid medical leave. Check with your state's Department of Labor or an employment law attorney to find out the rules where you live.
Although most employees in the United States work on an "at-will" basis, which means they can be terminated for virtually any reason, the Americans with Disabilities Act (ADA) makes it illegal to fire an employee due to disability. This law protects those who meet the ADA's definition of disability, which includes many individuals on disability leave and some who have previously received benefits and returned to work.
Under the ADA, disability is defined as "a physical or mental impairment that substantially limits a major life activity." Employers covered by the ADA (those with 15 or more workers) must offer to make reasonable accommodations of your disability as long as it will not cause them "undue hardship." The burden is, however, on the employee to inform their boss of their disability so that accommodations can be provided.
Accommodations can include restructuring a person's job duties or schedule, installing Braille signage, modifying desks, making the workplace more wheelchair accessible, and many others. But even granting additional unpaid leave can be a reasonable accommodation. If you're granted time off as an accommodation, you can't lose your job during that period.
Whether any of these accommodations constitute a hardship for the employer depends on many factors, including the size of the company and the cost of the changes. If there aren't any reasonable accommodations an employer can make that will allow a disabled employee to perform all the essential functions of the position, the worker may be legally terminated.
For more information on this topic, see Nolo's section on reasonable accommodations under the ADA.
Before terminating an employee on leave—or not allowing a worker to return to work after they return from leave—an employer has to determine whether there are accommodations that would allow the employee to do the job. The employer must work with the employee to try several types of accommodations specific to his or her disability before deciding that the worker can't do the essential functions of the job. But remember, you may need to negotiate with your employer over the accommodations you'll need to keep your job, especially if the accommodations will be expensive for your employer or you work for a small company.
In practice, employers are often reluctant to fire employees who are on disability leave due to a fear of litigation. However, from the employer's point of view, it is often impractical or impossible to hold a disabled employee's job open for an extended period of time. In these cases, the employer is left with little choice but to hire another employee to fill the vacant position.
It can be confusing to figure out how the FMLA and the ADA apply to your particular situation, when you are on FMLA or other unpaid leave and receiving disability benefits but you want to return to work eventually. For example, can your employer argue that the fact you are collecting disability insurance benefits means you can’t perform the essential functions of the job? No. The definitions of disability used by the ADA and insurance companies (and Social Security and workers’ comp) are all different, so collecting disability benefits from any of these sources doesn’t necessarily mean you can’t do the essential functions of the job and are not protected by the ADA.
This summary may help you apply the FMLA and ADA rules to your personal situation.
Employees on disability leave can’t be fired if:
Employees on disability leave can be fired if:
AND
Here are some answers to frequently asked questions on getting fired or laid off while on disability leave.
If you're collecting short-term disability (STD) through your employer, it's probably through your employer's ERISA-based insurance policy. These short-term disability insurance policies pay you cash benefits when you're off work due to a disability, but they offer no protection for your job. The same is true for temporary disability insurance offered through a handful of state governments.
To be protected while you collect short-term disability benefits, you need to rely on a medical leave law, like the FMLA or a disability discrimination law, like the ADA.
If you are able to go back to your job, or a different type of work, when you are fired, you should be able to collect unemployment benefits. State unemployment agencies require that you are capable of working and actively looking for jobs when you apply for unemployment.
But if you're still unable to work due to your disability, you can't collect unemployment. If you recover from your short-term disability and are ready to go back to work soon after you're fired, you'll likely to eligible for unemployment benefits at that point.
Many employees wonder what will happen to their health insurance coverage if they're fired from their job. Fortunately, a federal law known as COBRA offers terminated employees the option to maintain health insurance coverage for a limited amount of time as long as they pay the full cost of coverage. COBRA insurance is often expensive, but it is frequently the only viable option for a recently terminated employee. Note that COBRA applies only to employers with 20 or more workers.
If your employer refuses to take you back after your leave ends, read our article on wrongful termination and then consider hiring an employment attorney. Your employer may claim that you were let go because you couldn't do the essential functions of the job, or due to business necessity, and you'll need help proving that that's not the case. An employment lawyer can help you file a complaint with the Equal Employment Opportunity Commission (EEOC) and file a lawsuit, if it comes to that.
]]>To get some real-world answers to those and other questions, we recently surveyed readers around the U.S. who had claims for wrongful termination. Here’s what they told us about their experiences.
Readers whose wrongful termination claims resulted in an out-of-court settlement or a court award after a trial typically received an amount that ranged from $5,000 or less to $80,000 (though a few ended up with much more than that).
But more than half of our readers (57%) who thought they were fired illegally never received any kind of compensation. Two points might help explain these results:
Our survey showed that several other factors made a big difference in readers’ chances of receiving a settlement or award, as well as the amount of compensation (more on that below).
Having the help of an attorney more than doubled our readers’ chances of getting a successful outcome in their wrongful termination claims. Nearly two-thirds (64%) of readers who hired lawyers received a settlement or award, compared to less than one-third (30%) of those who pursued claims on their own.
Attorneys also made a difference in the amount readers received. The average settlement or award for readers with lawyers was $48,800, compared to $19,200 for unrepresented readers.
Both of these survey results make sense when you consider how wrongful termination attorneys work. Once they agree to represent you, they can help you put together strong evidence. They know all of the legal and administrative hoops you have to go through, and they’re skilled at negotiating with employers.
Also, when an attorney is involved, employers are more likely to take your claim seriously and make a higher settlement offer.
Of course, attorneys don’t come free. Wrongful termination lawyers charge for their services in one of three different ways:
Based on the average compensation received by readers who had attorneys, as well as the average contingency fee they paid (29%), their lawyers typically received about $14,200. But even when you subtract that fee from the settlement or award, those readers still ended up with nearly $15,500 more, on average, than those who didn’t have attorneys.
While lawyers had the biggest impact on both the amount of compensation and the likelihood of getting anything, our survey pointed to several other factors that affected the outcomes of readers’ wrongful termination claims, including:
As our survey results showed, it isn’t easy to get what you believe would be fair compensation for being fired illegally. But some things can make a big difference—especially hiring a good employment attorney. In fact, readers who had lawyers were more than three times as likely to be satisfied with how their cases turned out, compared to unrepresented readers.
But what if you’re having trouble finding an attorney to take your case? More than half of our readers (62%) didn’t hire a lawyer. Among those who tried to hire a lawyer, the most common explanations they gave were that attorneys had turned them down because:
Employment attorneys will evaluate your case before they decide to represent you. After looking at the evidence and estimating how much compensation you’re likely to get (based on the amount of your monetary losses), they’ll probably advise you against moving ahead if they don’t think there’s a good chance of winning.
It can be discouraging when a lawyer says no, but it’s always worth talking to several attorneys to discuss your options and get a clear picture of your case.
If you've been wrongfully fired from your job, contact an experienced employment law attorney to discuss your legal options.
]]>Here's a look at some time-tested ways to document the circumstances of your firing.
If you sense that something has gone wrong in your relationship with your employer, you can take action even if there has been no formal disciplinary action against you. Make a record of each work-related event, such as performance reviews, commendations or reprimands, salary increases or decreases, and even informal comments that your supervisor makes to you about your work. Note the date, time, and location of the event, who was involved, and whether there were witnesses. Whenever possible, back up your log with documentation -- such as copies of employment policies, memos, or reviews. But always make sure you have a legal right to these documents: If you take something your employer considers confidential or otherwise off-limits, you might find yourself in legal trouble down the road, particularly if you file a lawsuit challenging your firing.
Ask to see your personnel file and make a copy of all reports and reviews in it. If you fear someone may tamper with your personnel file after you take legal action, make an extra copy of your file or of relevant reports or performance reviews, and mail them to yourself by certified mail. Then, should matters heat up later -- or should a court battle become necessary -- you will have dated proof of how the documents looked before any tampering took place.
You might want to ask your former employer for a written explanation of why you were fired -- to see whether their reasons mesh with your own hunches and to use as documentation in a wrongful termination lawsuit, if it comes to that.
Some states have laws (sometimes known as service letter laws) that require employers to provide former employees with letters describing certain aspects of their employment -- for example, their work histories, pay rates, or reasons for their terminations.
If you live in a state that has a law requiring service letters but your former employer hasn't given you one, make a written request for the service letter. Some states specify a time limit for requesting service letters. If possible, you should make your request within a day or two of your dismissal to make sure that you meet any deadlines and to prevent the passage of time from affecting people's memories. Send your request for a service letter to your employer by certified mail.
When asking a former employer for a service letter, you are asking for the truth, the whole truth, and nothing but the truth. But reasons for firing are subjective, and you may not like what you read. You might even be tempted to sue for defamation over what is written in the service letter. However, a number of states specifically protect employers from defamation lawsuits over what they have written in a service letter. Most laws do require a former employer to provide a service letter that is "truthful" or "in good faith" before they can take advantage of this protection.
If you live in a state that does not have a service letter law, your employer might not offer you any written explanation for your firing. If this happens, ask the person who officially informs you of your firing for a written explanation of the company's decision to dismiss you.
If your employer refuses to give you written documentation of the reasons for your dismissal, you may be in for a wait -- and some extra work -- before you get it. If your state is among the majority that has no laws requiring service letters, there is not much you can do to force the issue at the time of your dismissal. You may eventually learn the reasons why you were fired through laws that give employees access to their personnel files or through the discovery process if you file a wrongful termination lawsuit.
If you can't get a service letter, you might want to write a letter of understanding to the person who fired you (see the sample letter, below). This is especially important if you received mixed messages when you were fired. Although you should mail your letter of understanding promptly, it is usually best to let it sit for a day or two after writing it. Then, read it over again to make sure you have kept it brief and professional. Send your letter of understanding by certified mail so that you will be able to prove that the company received it.
If the company does not respond to your letter after a month or so, you can probably assume that the reason you stated in your letter of understanding is correct.
In the weeks following your firing, other important forms of documentation for your dismissal may come your way. For example, if you file a claim for unemployment compensation, your former employer will need to respond to your claim. Eventually, your employer's response will be translated into a document that your local unemployment insurance office gives you, and it should indicate why you lost your job.
No matter how or when documentation of your firing comes your way, you should store all relevant records in a safe place -- like a file folder or even a shoebox -- where they will not get lost or destroyed and where you can find and organize them easily.
For more information on employee rights, including tips on protecting your legal rights if you lose your job, see Your Rights in the Workplace, by Barbara Kate Repa (Nolo).
If you've been wrongfully terminated from your job, don't wait to contact an employment law attorney to discuss your legal options. Hiring an attorney will give you the best chance of negotiating a successful settlement or prevailing on your wrongful termination claim in court.
]]>Before you notify an employee of a termination, you should take certain steps to make sure the meeting goes smoothly. For example, you’ll want to contact payroll, terminate access to important information, and create a plan for transitioning the employee’s work to others. Getting these things in order will not only make the process smoother, but it will also help you avoid common errors that could lead to legal problems.
California law requires employers to pay a terminated employee all sums owed immediately upon termination. The terminated employee’s final paycheck must also include accrued vacation time, if your company offers paid vacation. You should prepare the check in advance, so that you can provide it to the employee at the termination meeting. Employers who fail to pay final paychecks on time can be hit with “waiting time” penalties, which are the employee’s usual wages for each day that the check is late.
You will also need to reimburse the employee for any outstanding business expenses, according to your company’s policy. You should have the reimbursement check ready to deliver at the termination meeting.
If the terminated employee has company credit cards, phone cards, or the like, these should be canceled on the day of the termination meeting. And, you should be prepared to deactivate the terminated employee’s access and passwords to company email and other accounts immediately after the termination meeting.
Work with other managers to create a plan for the terminated employee’s projects and tasks to be transferred to others. While you should avoid notifying the employee’s coworkers of the termination before the employee is notified, management needs to have a succession plan ready to implement soon after the termination meeting.
Under the Consolidated Omnibus Reconciliation Act, known as COBRA, employers with 20 or more employees that offer group health insurance must allow terminated employees to continue their coverage for a certain period of time. California also has its own COBRA law, which applies to employers with two to 19 employees. Under these laws, California employees may extend their health coverage for up to 36 months.
Within 30 days of the termination, you must provide the employee with a written notice explaining these rights. You must also notify your health insurance provider of the termination.
Decide in advance who will notify the employee of the termination and how that will be conveyed. This is often done at a termination meeting; if a meeting is not feasible, you may decide to notify the employee in writing. As a general matter, it is important that the notification be done in a respectful, professional manner. Regardless of the method of notification, there are certain things that should be done at the time of the termination.
First, provide the employee with the final paycheck and expense reimbursement check. Ask the employee if he or she has any other outstanding business expenses that aren’t covered by the check.
Second, retrieve any company property from the terminated employee. This may include company cell phones, car keys, laptops, office keys, badges, confidential files and records, and company manuals.
Finally, if the terminated employee had access to the company’s confidential or proprietary, you may want to prepare a confidentiality agreement for him or her to sign. In general, all employees are prohibited by law from revealing a company’s trade secrets in California.
However, confidentiality agreement may protect a broader set of confidential information or place additional restrictions on employees. If you’re asking the employee to sign a confidentiality agreement that gives up new rights, you must provide additional consideration (usually in the form of severance pay) in order for the contract to be valid.
If the employee signed such an agreement at hire or some other time (which is the best practice for employers to follow), provide a copy of that agreement and remind the employee of his or her continuing obligation to maintain the confidentiality of such information.
Once the unpleasant task of notifying the employee is done, you still have a few clean-up tasks.
Select someone to notify the terminated employee’s coworkers of his or her departure. If your company and the employee have agreed to characterize the departure in a particular way (“leaving to pursue other opportunities,” for example), prepare an announcement that is consistent with that agreement. Generally, it’s best to give as few details as possible to employees without a need to know.
You should also appoint someone to take calls about the terminated employee, such as prospective employers that may contact the company for a reference. If the employee and your company have agreed on the reference that will be given, prepare a statement that is consistent with that agreement. If not, you may want to limit the reference to confirming dates of employment, title, and salary. (For more information on talking to prospective employers, see Giving References for Former Employees.)
As a final bit of housework, don’t forget to remove the terminated employee’s name from company websites, mailing lists, and other documents.
]]>If an employee believes they have been wrongfully terminated, they can file a claim or lawsuit against their employer seeking compensation for lost wages, benefits, and other damages. The legal process for a wrongful termination claim can be complex and may involve proving the employer's intent or establishing a violation of the law.
Most employment is "at will," which means an employee may be fired at any time and for any reason or for no reason at all (as long as the reason is not illegal). But there are some important exceptions to the at-will rule—and legal remedies—that may help you keep your job or sue your former employer for wrongful termination.
If you have a written contract or other statement that promises you job security, you have a strong argument that you are not an at-will employee. For example, you may have an employment contract stating that you can only be fired with good cause or for reasons stated in the contract.
Or, you may have an offer letter or other written document that makes promises about your continued employment. If so, you might be able to enforce those promises in court. For help determining whether you were an at-will employee, see Nolo's article Employment at Will: What Does It Mean?.
The existence of an implied employment contract—an agreement based on things your employer said and did—is another exception to the at-will rule. This can be difficult to prove because most employers are very careful not to make promises of continued employment.
But implied contracts have been found where employers promised "permanent employment" or employment for a specific period of time or where employers set forth specific forms of progressive discipline in an employee manual.
In deciding whether an implied employment contract exists, courts look at a number of things, including:
If your employer acted unfairly, you may have a claim for a breach of a duty of good faith and fair dealing. Courts have found that employers breached the duty of good faith and fair dealing by:
Some courts don't recognize the "good faith and fair dealing" exception to at-will employment. And some states require that a valid employment contract exists before employees can sue for a breach of good faith and fair dealing.
It is illegal to violate public policy when firing a worker—that is, to fire for reasons that society recognizes as illegitimate grounds for termination.
Before a wrongful termination claim based on a violation of public policy will be allowed, most courts require that there be some specific law setting out the policy. Many state and federal laws have specified employment-related actions that clearly violate public policy, such as firing an employee for:
Some states also protect employees from being fired for very specific reasons, like service as an election officer or volunteer firefighter. Some courts have also held that employers cannot fire you because you took advantage of a legal remedy or exercised a legal right—such as filing a workers' compensation claim or reporting a violation of the Occupational Safety and Health Act (OSHA).
Employers may not fire even at-will employees for illegal reasons, and discrimination is illegal. If you believe you were fired because of your race, color, national origin, gender, religion, age, disability, pregnancy, or genetic information, you should talk to a lawyer right away.
There are strict time limits and rules that apply to discrimination claims; for example, you must file a complaint of discrimination with a state or federal agency before you may sue your employer in court. For more information on these types of claims, see Wrongful Termination: Discrimination and Harassment.
Employers are forbidden from retaliating against employees who have engaged in certain legally protected activities. To show that you lost your job as a result of your employer's retaliation, you must prove all of the following:
For more information on what constitutes retaliation, see Nolo's article Workplace Retaliation: What Are Your Rights?
In extreme cases, an employer's actions when firing a worker are so devious and wrong that they rise to the level of fraud. Fraud is commonly found in the recruiting process (where promises are made and broken) or in the final stages of employment (such as when an employee is induced to resign).
To prove that your job loss came about through fraud, you must show all of the following:
The hardest part of proving fraud is showing that the employer acted badly on purpose, in an intentional effort to trick you. That requires good documentation of how, when, to whom, and by what means the false representations were made.
A lawsuit for defamation is meant to protect a person's reputation and good standing in the community. To prove that defamation was a part of your job loss, you must show that—in the process of terminating your employment or subsequently providing references—your former employer made false and malicious statements about you that harmed your chances of finding a new job.
To sue for defamation, you must usually show that your former employer:
To win a case of defamation, you must prove that the hurtful words were more than petty watercooler gossip. True defamation must be factual information, and it must be false. For more information, see Nolo's article Defamation Law Made Simple.
Whistle-blowing laws protect employees who report activities that are unlawful or harm the public interest. Some states protect whistle-blowers who complain that their employer broke any law, regulation, or ordinance at all. Other states give employees whistle-blower protection only when they report that their employer broke certain laws, such as environmental regulations or labor laws.
For more information about whistle-blowing, visit the National Whistleblowers Center at www.whistleblowers.org or The U.S. Department of Labor's Office of the Whistleblower Protection Program
]]>But the jury doesn't just hand over a big pot of cash. The purpose of monetary damages is to make you whole: to compensate you for what you lost because of the employer's actions. You will have to prove not only that you suffered losses because of the employer's wrongful actions, but also the amount of those losses.
Wrongful termination cases are civil lawsuits. If you file a civil wrongful termination lawsuit, you (the plaintiff) are asking the court to order your former employer (the defendant) to pay money to compensate you for losses caused by the termination. This compensation is called damages. But, you cannot simply waltz into court and ask for “one million dollars” (to quote Dr. Evil); rather, you have to prove the amount of various types of losses you suffered at trial.
Here are the main elements of monetary damages that you may recover if you win a wrongful termination lawsuit.
What earnings have you lost because you were fired? This element of damages includes the pay you would have received if your employer had not fired you, as well as any earned and unpaid wages, overtime, or other compensation the employer has withheld.
However, this amount is reduced by any money you earned after being terminated. If you get re-hired at the same or a higher rate of pay at some point after the termination,you won't have any more lost pay as of the date of re-hire. If you get re-hired at a lower rate of pay, you will continue to have lost pay damages, equal to the difference between what your old job paid and what you are earning at your new job. For example, if you are out of work for one month, you count that full month of lost pay at the former pay rate. If you get a new job but are paid $1,000 per month less than at the former job, your lost pay damages continue to add up at the rate of $1,000 per month. Lost bonuses may also be a part of this element of damages.
The value of lost employment benefits is also an element of your damages from a wrongful termination. Because the cost and value of benefits can be difficult to quantify in dollar terms, you might need an expert to evaluate exactly how much you've lost for trial. This element includes medical and dental insurance, pension or 401k plans, stock options, and profit sharing, among other benefits.
In some wrongful termination cases, you can ask the jury to award emotional distress (also called “pain and suffering”) damages at trial. But, juries generally award emotional distress damages only if the employer has acted really badly and the employee has suffered in a way that can be verified by a mental health professional.
Often, the amount to be awarded for emotional distress is entirely up to the jury. This makes it difficult for a lawyer to evaluate how much you might receive for this part of your case.
Punitive damages are an amount the employer is ordered to pay for actions that are particularly egregious. Unlike other kinds of damages, which are intended to reimburse you for losses, punitive damages are intended to punish the employer and deter similar behavior by others in the future.
Punitive damages are not available for all wrongful termination claims and are not available in some states. In general, punitive damages are difficult to recover even where they are available, and impossible to quantify in advance. You may have to satisfy a greater burden of proof at trial in order to win punitive damages. And, even if these damages are available and you have met the burden of proof, the amount of such damages is entirely up to the jury.
Some types of employment-related claims may entitle you to an award of attorney’s fees. Most do not. In many (but not all) wrongful termination cases, your attorney will take the case on a contingent fee basis. This means the attorney will be paid a set percentage of what you win.
Anyone considering filing a lawsuit must do a cost/benefit analysis. You may have solid-gold legal claims, but a lawsuit may not be justified if you have very modest damages. Lawsuits are expensive, time-consuming, emotionally trying, and very risky.
If you haven't suffered many actual losses from being fired, a lawyer may advise against litigation, simply because what you're likely to "win" in court won't be worth what it would cost to get it.
An employment lawyer can advise you on the best way forward. Use our Lawyer Directory to find an attorney near you.
]]>I had a baby four weeks ago. I'm using the FMLA for my time off, and I already took a total of two weeks off during my pregnancy, so I have six more weeks of maternity leave. My manager called me today to let me know that the company is conducting layoffs, and my position is likely to be cut. This means I may not have a job to go back to. Can they fire me while I'm taking FMLA leave?
An employer can't fire you because you are taking FMLA leave. That would be retaliation, which is illegal. However, an employer can lay you off or fire you while you are on FMLA leave, if your leave has nothing to do with the termination.
The FMLA gives you the right to be reinstated to your former position (or a comparable one, if that position is no longer available) when your leave is over.
However, it doesn't give you any additional rights beyond those you would have had if not for taking FMLA leave. In other words, if your whole department gets laid off while you are out on leave, you don't have a special right to get your job back. This is because you would have been laid off even if you didn't take FMLA leave.
The same is true of firing for cause. There have been a couple of cases in which an employer discovered that an employee had committed serious misconduct only after that employee went out on FMLA leave. In this situation, the employer may fire the employee, even though she is using the FMLA, because the employer has a legitimate and independent reason to end the employment relationship.
In your case, the question is why your position is targeted for layoff. If your position would have been eliminated regardless of your leave, your employer is acting legally. If, however, you are being targeted because of your time off, you may have a legal claim for retaliation under the FMLA.
For example, if your employer is targeting employees who are on leave or have recently taken leave, that starts to look a bit fishy. Similarly, if you don't fit the announced layoff criteria, your employer's action might be suspicious. For instance, if the company claims to be laying off employees with the least seniority, but it is retaining a number of employees who have less seniority than you, that raises concerns.
If you've been terminated during your maternity leave or while on family or medical leave, it might be worth speaking to an attorney to discuss your legal options. The law places limits on an employer's ability to fire employees who are on leave. If you've been fired while on job-protected leave, you might be eligible for reinstatement or money damages.
You can use our Lawyer Directory to find an experienced employment attorney in your area.
]]>Do you have to abandon your rights and just live with the wrongful termination? Not if you do some leg work to find a lawyer who will take on your case for a fee that you can afford.
There are a variety of attorney fee structures, usually dependent on the type of representation you need. Here are brief descriptions of some of the more common methods lawyers use to get paid for their services.
Every attorney has an hourly fee: a set amount the attorney charges for each hour of work under hourly fee arrangements. These hourly rates vary a great deal from city to city and lawyer to lawyer. But, in general, hourly fees range from a couple hundred to several hundred dollars or more.
An hourly fee arrangement may make the most sense if you're shopping for a single, isolated service. For example, if you just want to have a lawyer look over a severance agreement, you can expect to be charged an hourly rate for that limited and relatively brief consultation.
A recent trend in legal fee arrangements is called “unbundling” of services. In the past, clients often hired a lawyer “on retainer,” to provide services as needed.
This was more common with business clients, but sometimes even an individual would hire a lawyer to help with all aspects of a problem, such as a wrongful termination. For example, perhaps the client wanted assistance appealing a denied claim for unemployment insurance or dealing with other administrative agencies, as well as with investigating possible legal claims and filing a lawsuit.
You can elect to hire a lawyer for a particular service (such as filing a claim for unpaid wages with your state's labor commissioner) without retaining the lawyer for any other services relating to your termination.
You have the option of hiring a different lawyer for other services, or expanding the services of the original attorney (with a new fee agreement), if the attorney agrees to take on the new work. Lawyers generally charge hourly fees for unbundled services.
If your case justifies filing a lawsuit, the lawyer may agree to a contingent fee, with or without a retainer. A contingent fee is essentially a percentage of your recovery. If you win, the lawyer gets a cut. But the lawyer receives no fees if you get no damage award or settlement.
The most common contingent arrangements are percentages of either an award of damages after trial or of a pretrial settlement amount. As with hourly fees, the percentage a lawyer charges differs from location to location. In general, however, a contingent fee of one-third of any pretrial recovery is quite common.
Often, the lawyer's percentage increases once a trial date is set or at some other demarcation of the beginning of litigation. The reason for the increase is that the attorney’s hours increase dramatically once a lawsuit is about to start.
At times, the lawyer will want a retainer, or lump-sum payment of fees, at the outset of the contingent fee arrangement. This is the lawyer’s “down-side” protection: a modest amount of money for taking the case on a contingent basis.
Lawyers charge retainers in many types of fee arrangements, not just contingent fee retainers. Sometimes, a lawyer will ask for a “refundable” retainer, meaning that you will get credit for the payment and the retainer amount will be subtracted from the lawyer’s contingent fee (if you win or settle).
Sometimes, a lawyer will ask for a retainer against hourly fees, then withdraw only those fees actually earned from the retainer amount with an accounting to you of the amount withdrawn and the amount remaining. If any money is left in the retainer at the end of the lawyer’s representation, you will get a refund of the unpaid balance.
Or, the lawyer may want a “cost retainer” to cover non-fee expenses, such as filing fees, costs of depositions, expert witness fees, and the like. Generally, the lawyer will withdraw from the fund as needed to pay costs that come up, with an accounting to you of the amount withdrawn and the amount remaining in the account.
You may never have hired a lawyer, but you likely have hired other service providers. A lawyer is simply a professional you hire to provide a service, and you definitely have the option of negotiating the lawyer’s fees. If the lawyer refuses to negotiate and insists on a particular fee structure, you can decide whether you’re willing to accept that or want to shop around.
How do you know what fee structure is best? You have to do some homework by evaluating your losses and the best way to maximize your possible outcome under the circumstances.
What are your losses, also called damages, from the termination? Typically, these will include lost pay, lost benefits, increased medical expenses, and possibly emotional distress. Lost pay encompasses the period of unemployment until you are or expect to be rehired at the same rate of pay. Benefits encompass medical plan coverage, bonuses, stock options, 401K or matching plans, and the like. Calculate an estimate of your losses in each category.
If you have a strong case and significant damages, you are in a better position to negotiate a contingent fee arrangement, because the lawyer could get a percentage of a sizable recovery.
If you have a strong case but low damages (maybe you immediately found a new job at a higher rate of pay), you and the lawyer may want to discuss another arrangement. For example, some lawyers will accept certain cases on a mixed reduced hourly fee/reduced contingent fee arrangement.
Under such an agreement, you would pay a low hourly rate for work done and the lawyer would get a small percentage of anything recovered for you. Or, you may decide that an unbundled service approach is best and hire the lawyer to represent you in a labor commissioner proceeding for a set fee.
Another element to keep in mind is costs: the non-attorney expenses referred to above. These vary greatly depending on what sort of action you decide to take. If you hire a lawyer to write a letter seeking pretrial settlement, the costs will be few or none. If you and your lawyer file a lawsuit, costs through trial will run to many thousands of dollars. You will likely have to pay all or some of these costs as they arise.
The key to a successful attorney/client relationship is communication. And, that communication starts with the fee discussion. Make sure you understand all terms of your attorney retainer agreement before you sign. If you don’t, ask your lawyer to explain the terms.
If the lawyer can't clearly explain fees or wants to proceed with the representation without a clear, written fee agreement, it's a good sign that you should take your business elsewhere.
A wrongful termination attorney or employment law attorney can help you understand your legal rights and options after being unjustly fired from your job.
A skilled attorney can evaluate the circumstances surrounding your termination and assess whether you have a valid claim for wrongful termination. A lawyer can also help you negotiate a settlement or file a lawsuit to recover damages for lost wages and benefits, emotional distress, and more.
You can use Nolo's Lawyer Directory to find an experienced attorney in your area.
]]>I was laid off from my job several months ago, along with about a dozen of my coworkers. At the time, the company told us it was downsizing and had to reduce payroll. Since then, however, the company has hired new employees to replace all of us, doing essentially the same work we were doing.
And, I've discovered that everyone who was laid off had complained to the company about discrimination or harassment concerns. Now I think we were all fired in retaliation for complaining.
The problem is that I signed a release, agreeing to give up the right to sue the company over any claims arising out of my employment, in exchange for a severance package. But I didn't know all the facts when I signed it! Can I still sue?
Whether you can sue after signing a release depends on the facts, the wording of the release, and your state's law, among other things.
A court will first look to whether you specifically gave up your right to bring a discrimination, harassment, or retaliation claim in the release. If so, you may be out of luck. But, what if you didn't know you had retaliation claim until after you signed the release? Some states allow employees to release "unknown" claims, as long as the language in the release is clear and noticeable. That portion of the release may have to be highlighted in some way, for example, by using text that is in a larger font, in all capitals, or bolded.
If the release seems to clearly cover the claims you now want to make, did you sign it voluntarily? The mere fact that you were out of a job and needed the severance money will not be enough to show that you were coerced into signing the release.
However, if your employer threatened you, for example, by threatening to dispute your claim for unemployment or giving you bad references if you refused to sign, that would likely not be voluntary.
A court will also look at what you got in exchange for signing. For a release to be valid, you must be getting something of value in exchange for giving up your right to sue. This could be anything you and the employer negotiate, but it must be in addition to what you were already entitled to. For example, if your state doesn't require employers to pay out accrued vacation time when an employee leaves, your employer might agree to pay you that money in exchange for your signature.
However, if your employer is already required to pay out your vacation time, it would have to give you something more to make the release a valid contract.
If the language in the release is vague or ambiguous, or if the terms are unclear, a court may find the waiver unenforceable. That means if you didn't understand the release when you signed it, you might not be bound by it.
As you can see, there are many moving parts to consider when it comes to the validity of a release. Your best course of action is to talk to an experienced employment lawyer, who can tell you whether you have a chance of defeating the release in court.
]]>I was recently laid off from my job, and I've been searching for a new one. Last week, I learned that I'm pregnant. I'm only six or seven weeks along, so I'm not planning on sharing the news with potential employers just yet. But is there some point during the hiring process where I'm legally obligated to reveal that I'm pregnant?
You have no legal duty to tell potential employers that you're pregnant. If you want, you can waltz into the interview room a month away from your due date and not say a word about it. Of course, that might not be the most effective strategy for getting the job or for succeeding once you're in it.
Legally speaking, employers may not discriminate against job applicants due to pregnancy. For example, a potential employer cannot refuse to hire you or take you out of the running because you are pregnant.
That being said, going through the application process while pregnant can be tricky. If you managed to get a group of hiring managers to speak candidly, it's likely that many would prefer not to hire someone who is pregnant. After all, a pregnant employee will probably need at least some time off work for medical appointment, childbirth, and parental leave once the baby is born. Compared to an applicant who has no such obvious need for time off work, hiring a pregnant applicant might not look like the best business decision.
This tension between what the law requires and what a prospective employer may be looking for can create problems for pregnant job hunters. Practically speaking, it's very hard to prove discrimination in the hiring process. This is because potential employers aren't required to tell applicants why they weren't hired (or who was hired instead). Besides, you are likely much more interested in getting a job than building up a lawsuit against a potential employer.
Most pregnant job hunters (and most pregnant women, for that matter) keep their pregnancies to themselves until they've completed at least the first trimester. After you pass that milestone, whether or not you tell prospective employers about your pregnancy is a personal decision. Keep a few things in mind, however:
I recently learned that I'm pregnant. I'm only in my second month, and I've had several miscarriages in the past. I don't plan to tell anyone that I'm expecting until I'm well into my second trimester, to avoid painful conversations and keep myself on an even emotional keel. But a friend of mine told me that I have to tell my boss as soon as I know for sure that I'm pregnant. Is this true?
No, you are not legally required to tell your employer that you're pregnant as soon as you know about it or at any particular point in your pregnancy. Most employees keep their condition to themselves until they are at least through the first trimester. When to tell your employer is more of a personal choice than a legal one.
That said, you will need to say something at some point, once you feel comfortable doing so. You'll probably want to take time off for the birth and afterwards. You may also need time off during your pregnancy, for prenatal care or other medical needs. And, assuming you plan to return to work after having your baby, you'll want to maintain positive relationships with your manager and coworkers throughout your leave.
Many employees have "the talk" with their managers at some point in the second trimester, usually around the time when they are beginning to show. This strategy gives you and your manager plenty of time to discuss your time off, how your work will be handled while you're gone, and your plans to return to work, without putting you in a position of revealing personal information before you are ready.
Some employees are anxious about revealing their pregnancies because they fear they will be fired or treated differently at work. By law, however, employers may not discriminate against an employee because she is pregnant. If your employer has at least 50 employees, you may be eligible to take up to 12 weeks of leave for pregnancy and childbirth under the federal Family and Medical Leave Act. Your state may give you additional rights to time off for pregnancy and parenting. (See State Family and Medical Leave Laws to learn more.)
Of course, not every employer honors its legal obligations. If your employer breaks the law, however, you will at least have legal remedies. For more information, see Wrongfully Terminated for Being Pregnant.
]]>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.
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?)
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.
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.
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?
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.
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?)
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.
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.
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.
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.
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.
If you believe your termination was the result of discrimination, retaliation, or any other illegal reason, you should consult an experienced attorney who specializes in employment law. An attorney can help you try to negotiate a settlement with your former employer or, if that doesn't work, file a charge of discrimination or a civil lawsuit.
]]>The federal Americans with Disabilities Act (ADA) protects applicants and employees with disabilities from workplace discrimination. The ADA applies to private employers with 15 or more employees. (If you work for a smaller employer, you may be protected by your state’s disability discrimination law; select your state from the list on our Discrimination and Harassment page to find out.)
You have a disability under the ADA if you have a physical or mental impairment that substantially limits a major life activity. Major life activities are things that are essential to daily life, such as caring for oneself, walking, hearing, breathing, learning, seeing, speaking, performing manual tasks, and so on. Major life activities also include major bodily functions, such as the proper working of the immune system, normal cell growth, and healthy reproductive, neurological, respiratory, digestive, and circulatory functions.
The ADA also protects employees from discrimination based on a record or history of disability (for example, a history of heart disease) or your employer’s incorrect perception that you have a disability. If, for example, you have a limp that does not impair your ability to walk, it would be discriminatory for your employer to assume that you’re unable to do a job that requires walking.
As long as you can perform the essential functions of your position, with or without reasonable accommodation, your employer may not fire you based on your disability. (The essential functions of a position are those that someone in your job absolutely must be able to do, as opposed to tangential or occasional responsibilities; see Essential Job Functions Under the ADA for more information.) In fact, your employer may not consider your disability in making any job decisions, including assignments, promotions, compensation, benefits, discipline, or other terms and conditions of employment.
The ADA also requires employers to provide reasonable accommodations to employees with disabilities. Accommodating an employee means providing assistance or making changes to the job or workplace that would allow the employee to do the job despite having a disability. For example, an employer might provide voice recognition software to an employee who is visually impaired, lower the height of a desktop and install ramps to accommodate an employee who uses a wheelchair, or allow an employee with diabetes to take more frequent breaks to eat, drink, use the restroom, and monitor blood sugar levels.
If you need reasonable accommodation to do your job, you must request one from your employer. (See Requesting a Reasonable Accommodation to learn how.) Although your employer isn’t legally obligated to provide the specific accommodation you request, it must work with you to try to come up with an accommodation that would be effective. However, there are some limits to an employer’s duty to accommodate. Your employer is not required to provide an accommodation that would create undue hardship: significant difficulty or expense, given the nature, size, and resources of the company.
You might also have the right to take time off work because of your disability. For example, you may need time off for surgery, ongoing cancer treatments, or to recover from a back injury. The federal Family and Medical Leave Act (FMLA) provides eligible employees with up to 12 weeks of unpaid leave for a serious health condition. The FMLA applies only to employers with 50 or more employees, and you must meet certain requirements in order to be eligible (including having worked for your employer for at least a year). For more information on the FMLA, including eligibility requirements, see Taking Family and Medical Leave.
Several states have similar family and medical leave laws, which may apply to smaller employers or provide additional rights. (To learn more, select your state from the list at State Family and Medical Leave Laws.) A few states and cities require employers to provide paid sick days to their employees as well.
Time off work might also be required as a reasonable accommodation under the ADA. This can be a complicated legal issue. On the one hand, attendance is an essential function of most jobs. On the other, allowing an employee to take some leave to recuperate might allow the employee to return to work at full strength more quickly. Ultimately, courts will look at your job duties, how much time off you needed, and how your employer has treated requests for time off from employees without disabilities, among other things. (See Time Off Work as a Reasonable Accommodation to find out more.)
If you were fired in any of the following circumstances, you should consider talking to a lawyer about a disability discrimination lawsuit:
If you want to pursue a wrongful termination case against your employer, there are a few steps you will need to take. Below, we explain the process of filing a wrongful termination lawsuit and what kind of compensation you can expect to recover.
Before you can sue your employer for disability discrimination, you must file an administrative charge of discrimination with a government agency. You can file your charge with the Equal Employment Opportunity Commission (EEOC), the federal government agency that enforces the ADA, or in some cases, with your state’s fair employment practices agency. You have either 180 or 300 days to file your charge, depending on your state’s laws. (To learn more about filing and timing requirements, see Filing an EEOC Charge of Discrimination.)
In your charge, you must describe your employer’s actions and why you believe they were discriminatory. The EEOC, or your state’s agency, will contact your employer about the charge. It may investigate, try to mediate or settle the dispute, or even sue your employer on your behalf (although this is exceedingly rare).
If you want to file a lawsuit right away, you can ask the EEOC or the state agency to issue you a “right to sue” letter, stating that you have met the requirement of filing an administrative charge and may now file a lawsuit. But don’t request this letter until you are ready to proceed: You have only 90 days after receiving the letter to file a federal lawsuit.
If you win your disability discrimination lawsuit, you can ask the court to reinstate you (that is, to give you back your job). Often, however, this just isn’t feasible, given how much time has passed and the negative feelings that have likely built up between you and your former employer.
Instead, it is more common to receive monetary damages, including:
You can collect as much as you lost in back wages and benefits. However, federal law limits how much you can be awarded for emotional distress, out-of-pocket losses (such as the costs of looking for a new job), and punitive damages. The maximum combined award for these damages ranges from $50,000 to $300,000, depending on the size of your employer.
If you are considering bringing legal claims against your employer for wrongful termination, you should talk to an experienced employment lawyer right away. A lawyer can assess the facts of your case, let you know how strong your claims are, and advise you on how much you might expect to collect in damages. A lawyer can help you file an administrative charge, negotiate with your employer, or arrange a mediation to try to settle your claims. Especially if you decide to file a lawsuit, you will want to have a lawyer representing you each step of the way.
You can find out much more about finding and hiring the right lawyer for your disability discrimination case at our Asserting your Rights Against Discrimination page. To find a local employment lawyer, check out Nolo’s Lawyer Directory.
]]>Constructive discharge is a legal concept that was first developed by the National Labor Relations Board (NLRB) in the early days of the labor union movement in the United States. Today, the concept of constructive discharge applies to union and non-union employees alike. However, it was originally developed in the 1930s to stop efforts by employers to discourage employees from unionizing or forcing union employees to resign from their positions.
Some employers stubbornly opposed efforts by their employees to form unions to collectively negotiate for higher pay rates, more benefits, and better working conditions. These employers used a variety of measures, including physical violence, to discourage employee unionization. In some cases, employees ended up leaving their jobs rather than suffering such abuse at the hands of their employers.
Along the same lines, instead of openly discouraging union activity, some employers created intolerable working conditions with the specific intention of forcing employees to resign. Employers often retaliated against employees who had made efforts to form unions. When these employees were forced to resign because of intolerable working conditions, they sued, relying on the constructive discharge provision adopted by the NLRB in the National Labor Relations Act (“the Act”). The U.S. Supreme Court allowed these employees to sue, holding that an employer violates the Act when it “purposely creates working conditions so intolerable that the employee has no option but to resign.”
Although the concept of constructive discharge arose out of the union movement, courts have extended it to situations involving non-union employees as well. Although the rules differ in some ways, the standard for what qualifies as a constructive discharge is similar: when an employee quits his or her job because the working conditions are intolerable, the resignation is legally regarded as a termination.
The U.S. Supreme Court has extended the legal concept of constructive discharge to cases brought under Title VII of the Civil Rights Act and the Age Discrimination in Employment Act (ADEA), the federal laws that prohibit discrimination and harassment in employment based on certain protected characteristics. And, many state courts also recognize the concept in similar types of cases under state laws.
If you were harassed or discriminated against because of your gender, race, religion, sex, nationality, age or disability, and it caused you to quit your job, you may be able to file a wrongful termination lawsuit even if you technically quit or resigned.
To successfully argue that you were constructively discharged under federal antidiscrimination laws, you must show that the harassment or discrimination created such intolerable working conditions that you were forced you to quit your job. It won’t be enough to show that your supervisor treated you badly or that you were no longer happy at work. Instead, you must show that the working conditions imposed on you were “objectively” intolerable, meaning that the working conditions were so bad that the average person in your situation would also have been compelled to resign. In practice, this is a very high standard that is often difficult to meet. In general, even basic discrimination claims (such as a woman receiving lower pay than a man in the same job) will not meet this standard. The resigning employee must prove that the employer engaged in especially egregious conduct, such as physically harassing the employee, demoting him or her in a humiliating way, or the like.
In some states, workers may be able to sue even if the intolerable working conditions did not constitute illegal discrimination or harassment under Title VII. For example, abusive bullying that is not based on a protected category may be considered intolerable working conditions under state law.
In general, if your employer has taken no “tangible action” against you, such as a demotion, pay cut, or the like, you will probably have to show that you reported the working conditions to management and gave your employer a chance to remedy the situation before you resigned. The purpose of this rule is to give employers the opportunity to voluntarily step in and fix the problem, making legal action unnecessary.
Were you forced to quit your job in a way that amounts to constructive discharge? As you can see, this is a complex legal question that must take into account the circumstances of each case. If you believe you were constructively discharged, talk to an employment lawyer and get a legal assessment of your potential claim.
]]>Word of mouth is one of the best ways to find a reputable lawyer. Even if your friends or family don't know any employment lawyers, they might know other lawyers—such as a family lawyer or estate planning lawyer—who can provide a recommendation. Keep in mind that individual preferences for a particular lawyer are guided by intangibles such as personality or your comfort level with the person. Here are a few questions you may want to ask a person who gives you a glowing review of a particular employment lawyer:
If you can't find a personal referral, there are several organizations and services that can connect you with a qualified employment attorney, including:
Be careful that people do not merely give you the names of lawyers they have heard of—or one who handled an entirely different kind of case, such as a divorce or a house closing. Any lawyer can become well known just by buying a lot of advertising time on television or a large block in the yellow pages. Beware that in many states, lawyers can advertise any area of specialization they choose, even if they have never before handled a case in the area.
Before narrowing down your list, do a little research on each lawyer. Check out the lawyer's website or other online profile. In most states, you can also confirm that the lawyer is in good standing—meaning currently authorized to practice law and not facing disciplinary charges for misconduct—through your state's bar association. Some states have a searchable online database where you can find lawyers by name.
Once you have a few names, start by calling for an appointment. Some lawyers will try to screen you over the phone by asking you to discuss the basics of your case. A little of this can be helpful to you both. You can begin to assess the lawyer’s phoneside manner; he or she can begin to assess whether you truly need expert legal advice.
The next step is an in-person meeting, usually at the lawyer's offices. Come prepared with any documents that are relevant to your case, as well as questions that you want to ask the lawyer. Here are some questions you might want to ask:
Some lawyers will provide a free initial consultation to decide whether your situation requires legal action. However, others will charge a reasonable fee for legal advice. A charge of between $75 and $250 for a one-hour consultation is typical. Organize the facts in your case well before going to your consultation, and be clear about what you are after—whether it is a financial settlement or reinstatement to your old job. Bring any important documents (such as an employment contract, disciplinary warning, or proposed severance agreement) with you to the meeting. An hour should be more than enough to explain your case and obtain at least a basic opinion of how it might be approached and what it is likely to cost. If you find the right lawyer and can afford the charge, it can be money well spent.
Keep in mind that very few employment law disputes actually end up in a courtroom. Most are settled or resolved in some other way. So you need not be swayed by a lawyer’s likely effect on a jury alone. A good lawyer may also offer the valuable advice that you do not have a good case—or may suggest a good strategy for negotiating a settlement.
Most disagreements between lawyers and clients involve fees, so be sure to get all the details involving money in writing—including the hourly billing rate or the contingency fee arrangement (see below), the frequency of billing, and whether you will be required to deposit money in advance to cover expenses. Fee arrangements depend on several factors, including the scope of the work, the type and strength of the legal claim, and the geographical location in which the lawyer practices.
Many workplace cases are handled under some form of contingent fee arrangement, in which a lawyer agrees to handle a case for a fixed percentage of the amount finally recovered in a lawsuit. If you win the case, the lawyer’s fee comes out of the money awarded to you. If you lose, neither you nor the lawyer will get any money. A lawyer’s willingness to take your case on a contingent fee is usually a sign of the lawyer’s faith in the strength of your claim. A lawyer who is not firmly convinced that your case is a winner is unlikely to take you on as a contingency fee client.
Although there is no set percentage for contingency fees, in most types of cases, lawyers demand about a third if the case is settled before a lawsuit is filed with the courts, and 40% if a case has to go to trial. Keep in mind that the terms of a contingency fee agreement may be negotiable. You can try to get your lawyer to agree to a lower percentage—especially if the case is settled quickly—or to absorb some of the court costs.
Some employment lawyers charge on an hourly basis instead of a contingency fee. This can be advantageous for an employee if the scope of the work is relatively small, such as reviewing a contract or negotiating a better employment package. However, be very careful before agreeing to an hourly rate if you are filing a lawsuit against your employer. Lawsuits are time-consuming and can take years to resolve. In reality, most employees can’t afford tens of thousands of dollars in attorneys’ fees, especially when there is no guarantee of success.
If you meet with a lawyer whom you like, but who is unwilling to take your case on a straight contingency basis, explore other options. For example, some lawyers are willing to charge employees a reduced hourly rate or a flat fee in combination with a contingency fee. At the very least, shop around to a few lawyers, discuss you specific goals and objectives, and arrange for a cap on hourly fees.
Sometimes, a lawyer working under a contingency agreement will require that you pay all out-of-pocket expenses, such as filing fees charged by the courts and the cost of transcribing depositions—interviews of witnesses and others involved in a lawsuit who may provide additional information about the facts and circumstances. If so, the lawyer will want you to deposit a substantial amount of money—a thousand dollars or more—with the law firm to cover these expenses. From your standpoint, it is a much better arrangement for the lawyer to advance such costs and get repaid out of your recovery. A commonsense arrangement might involve your advancing a small amount of money for some costs, with the attorney advancing the rest.
In some types of workplace lawsuits, such as discrimination or harassment claims, the court may award you attorneys’ fees as part of the final judgment. However, this award may not be large enough to cover the entire amount owed to your attorney under the legal fee contract. Therefore, the contingency fee contract should spell out what happens to a court award of attorneys’ fees.
One approach is to have the fees paid to the attorney in their entirety—and subtract that amount from the contingency fee on your award. Another approach, which is less advantageous to you, is to add the awards for fees and damages and calculate the attorney's contingency fee on the entire amount.
Most complaints against lawyers have to do with their failure to communicate with their clients. Your lawyer may be the one with the legal expertise, but the rights that are being pursued are yours—and you are the most important person involved in your case. You have the right to demand that your lawyer be reasonably available to answer your questions and to keep you posted on your case. You may need to put some energy into managing your lawyer.
Carefully check every statement. Each statement or bill should list costs that the lawyer has paid or that you are expected to pay. If you question whether a particular bill complies with your written fee agreement, call your lawyer and politely demand that a new, more detailed version be sent before you pay it. Don’t feel as though you are being too pushy: The laws in many states actually require thorough detail in lawyers’ bills.
Do your homework. Learn as much as you can about the laws and decisions involved in your case. By doing so, you will be able to monitor your lawyer’s work and may even be able to make a suggestion or provide information that will move your case along faster. Certainly if the other side offers a settlement, you will be in a better position to evaluate whether or not it makes sense to accept it.
Keep your own calendar of dates and deadlines. Note when papers and appearances are due in court. If you rely on your lawyer to keep your case on schedule, you may be unpleasantly surprised to find that an important deadline has been missed. Many a good case has been thrown out simply because of a lawyer’s forgetfulness. Call or write to your lawyer at least a week before any important deadline in your case to inquire about plans to meet it.
Maintain your own file on your case. By having a well-organized file of your own, you will be able to discuss your case with your lawyer intelligently and efficiently—even over the telephone. Being well informed will help keep your lawyer’s effectiveness up and your costs down. Be aware that if your lawyer is working on an hourly basis, you will probably be charged for telephone consultations. But they are likely to be less expensive than office visits.
If your relationship with a particular lawyer does not seem to be working out for some reason, or if you truly believe your case is not progressing as it should, consider asking another lawyer to take over. Beware, however, that if you are in the midst of a lawsuit, the judge may need to approve the switch—and has the discretion to refuse the request if he or she believes change would cause an unreasonable delay or prejudice the other side.
If you are able and anxious to change lawyers, be clear with the first one that you are taking your business elsewhere, and send him or her an immediate written notification of your decision. Otherwise, you could end up receiving bills from both lawyers—both of whom might claim that they handled the lion’s share of your case, complicating the matter of who is owed what.
Before you pay anything, be sure that the bill does not amount to more than you agreed to pay. If you have a contingency fee arrangement, it is up to your new lawyer and former lawyer to work out how to split the fee.
Take prompt action against any lawyer whose behavior appears to be deceptive, unethical, or otherwise illegal. A call to your state or local bar association should provide you with guidance on what types of lawyer behavior are prohibited and how to file a complaint.
]]>An employment contract is a legally binding agreement between an employer and an employee about the terms of employment. The most straightforward type of contract is a written contract, signed by the parties. However, contracts may also be oral (that is, the employer and employee verbally agreed to certain terms) or implied from the actions or statements of the parties (for example, a statement in an employee handbook that employees will be fired only for cause). For more information on the different types of contracts, see Types of Employment Contracts.
The terms of an employment contract are up to you and your employer. Of course, in the typical employment relationship, the employer has more bargaining power. However, the law does place a few things off limits. For example, your employer can't ask you to bargain away your right to earn at least the minimum wage or your right to collect unemployment, if you lose your job through no fault of your own. Beyond some basic rules, however, you and your employer are free to agree to whatever contract terms you wish.
An employment contract is “breached” (or broken) when one party doesn’t live up to its end of the bargain. In the context of an employment contract, the employee typically claims to have been fired or laid off before the term agreed to in the contract, or for reasons not allowed by the contract. For example, if your contract says that you won’t be fired for two years except for good cause, and your boss fires you so that he can hire his nephew, that would be a breach of contract.
Employment contracts are not always a guarantee of continued employment, however. For example, your employer may have asked you to sign an at-will employment agreement. At-will employment means you can be fired at any time, for any reason that isn’t illegal, and you can quit at any time, for any reason. Because you can be fired at any time, however, you can’t claim breach of contract if you are terminated.
At-will agreements may also specify things like schedule, compensation, and work location. However, even if your employer doesn't honor one of these terms – by, for example, paying you less than the contract states – you probably won’t have a good breach of contract claim. Courts have generally held that, because employers are free to fire at-will employees, they are also free to change the terms of employment at any time. Legally speaking, if your employer is free to fire you and then offer to rehire you at a lower salary, it is also free to simply reduce your salary.
If your contract limits your employer’s right to fire you, however, you do not work at will. In this situation, the employer must provide what it said it would in the contract. For example, if your contract says you will be paid a bonus of at least $50,000 a year, and you receive only $10,000, your employer has breached the contract.
If your employer breaks your employment contract, you are entitled to what you should have received under its terms. Generally speaking, this means that your employer owes you money. Courts are reluctant to order one party to a contract to actually do what it said it would do (called “specific performance”). For instance, if you had a one-year contract and your employer fired you after only six months, a court would almost certainly not order your employer to hire you back for six more months. Instead, the court would order the employer to pay you the money that you missed out on as a result of the breach.
In a contract case, an employee can collect “expectation” damages: what the employee expected to get out of the contract. For an employment contract, expectation damages are the amount the employee should have received if the contract were performed as promised. For example, if an employee’s contract said she would receive a bonus of $60,000 at the end of the year, and she received only $20,000, she is entitled to an additional $40,000.
However, an employee has a legal duty to “mitigate” damages caused by a breach of contract. This means the employee must take reasonable steps to minimize the financial loss by, for example, finding another job. The amount the employee actually earned, or should have earned with reasonable efforts, is subtracted from the employee’s damages award.
EXAMPLE: Claire has a two-year employment contract, stating that she may be fired only for committing “gross financial malfeasance” during the contract’s term. The contract provides for an annual salary of $120,000, plus benefits. Claire is fired after one year so the company’s new CEO can bring in his own management team. Claire may not simply spend the next year watching television on the sofa and then collect $120,000 plus the value of her benefits. Instead, she must search for a new job. When she finds one, she can ask the court for what she lost from the firing. If Claire dutifully searches for a new job, then finds one four months later that pays $2,500 less per month (with similar benefits), she can ask the court for $60,000: $40,000 for the four months she is out of work, plus $20,000 for the difference between what she should have earned under the contract for the next eight months ($2,5000 x 8). If Claire doesn’t look for a new job, the court can subtract the amount it believes she reasonably could have earned in that time, had she properly searched for a job.
Some contracts include a “liquidated damages” provision. This contract clause states that, in case of a breach, one party must pay the other a certain amount of money. Liquidated damages are intended to compensate for contract breaches that are hard to value monetarily. In an employment contract, however, these provisions are relatively rare. (It's usually pretty easy to figure out what the employee lost in terms of salary and benefits.) If your contract includes a liquidated damages clause, you can ask the court for that amount.
In a contract case, you are not entitled to damages for your emotional distress (sometimes called pain and suffering or compensatory damages). You are also not entitled to punitive damages: damages intended to punish the employer for especially egregious behavior. These types of damages are available in some employment discrimination and harassment cases (and in other areas of law, such as personal injury cases). However, you can’t get them in a breach of contract case.
If your employment contract includes a provision requiring the employer to pay your attorneys' fees in case of breach, you can ask the court to award them. This is somewhat unusual, however. If your contract doesn’t include this type of provision, the court cannot order your employer to pay your attorneys' fees or court costs. You'll have to pay for these yourself.
If your employer has breached your employment contract, you should consult with an experienced employment lawyer. A lawyer can evaluate your case and let you know what you can expect to collect in damages. Because the damages available for breach of contract are not as significant as for other types of cases, a lawyer will also examine the facts to determine whether you might have other legal claims against your employer, which could increase the damage award.
]]>