Wrongful Termination Consultation: a Legal Guide for Fired Employees

The wrongful termination consultation begins with a determination of whether the employer's decision falls within any recognized exception to the at-will employment doctrine, including the statutory exception that prohibits termination based on a protected characteristic under Title VII, the ADA, the ADEA, or the applicable state anti-discrimination statute, the contractual exception that arises when the employment relationship is governed by an express or implied contract requiring termination only for just cause, and the public policy exception that prohibits termination in violation of a clear and specific public policy expressed in a statute, regulation, or constitutional provision. Wrongful-terminations and ada counsel can evaluate whether the specific facts of the termination satisfy the legal elements of one or more wrongful termination theories under federal or state law, assess whether the employer's stated reason for the termination is pretextual or inconsistent with the employer's treatment of similarly situated employees, and advise on the most legally compelling theory for pursuing the wrongful termination claim.

The discrimination-based wrongful termination claim requires the employee to demonstrate that the employer's stated reason for the termination was a pretext for discrimination based on a protected characteristic, and the most compelling evidence of pretext includes evidence that similarly situated employees who did not share the plaintiff's protected characteristic were treated more favorably, evidence that the employer departed from its standard progressive discipline policy in the plaintiff's case, and contemporaneous statements by supervisors that reflect a discriminatory attitude toward the plaintiff's protected characteristic. Workplace-discrimination and equal-employment-opportunity counsel can advise on whether the employee's termination was motivated by a protected characteristic such as race, sex, national origin, religion, age, or disability, assess whether the available evidence creates a legally sufficient inference of discriminatory motive, and develop the evidence strategy for establishing the causal link between the protected characteristic and the adverse employment action.

The public policy exception protects employees from termination for engaging in conduct specifically protected by a statute, constitutional provision, or clear public policy mandate, and the most common categories of public policy wrongful termination include termination for filing a workers' compensation claim, termination for serving on a jury, termination for refusing to engage in an illegal act at the employer's direction, and termination for reporting illegal employer conduct to the appropriate governmental authority. Wrong-termination and employment-and-labor counsel can evaluate whether the employee's termination violated a specific statutory or constitutional provision that protects the employee from termination for refusing to engage in an illegal act, reporting a legal violation, or exercising a statutory right, and assess whether the public policy exception to the at-will doctrine applies to the specific facts of the termination.

The retaliation-based wrongful termination claim requires the employee to establish that the employer was aware of the employee's protected activity, that an adverse employment action followed, and that there was a causal connection between the protected activity and the adverse action, and the most important evidence of causal connection in most retaliation cases is the temporal proximity between the employee's protected activity and the termination, with courts recognizing that a short period between the protected activity and the termination creates a strong inference of retaliatory motive. Fmla and whistleblower counsel can advise on whether the employee's termination was causally connected to the employee's exercise of a federally protected right such as taking FMLA leave, filing a safety complaint, or reporting a legal violation, assess whether the temporal proximity between the protected activity and the termination creates a legally sufficient inference of retaliatory motive, and develop the retaliation claim strategy for the consultation.

The evidence gathering component of the wrongful termination consultation requires the employee to compile a comprehensive documentary record that includes all performance evaluations, written warnings, and disciplinary notices received during the employment, all communications between the employee and supervisors or HR related to the termination or events leading up to it, all written policies in the employee handbook that may be relevant, and any communications that reflect the employer's awareness of the protected characteristic or protected activity that the employee believes motivated the termination. Civil-litigation-evidence and discrimination-and-harassment counsel can advise on the specific categories of documentation that are most legally valuable in a wrongful termination consultation, assess whether the employee has preserved the key evidence needed to establish the claim before filing the EEOC charge or civil lawsuit, and develop the evidence gathering and preservation strategy for the case.

The table below identifies the four principal legal claim types available to a wrongfully terminated employee, the required legal theory for each claim type, the key evidence that must be gathered to support the claim, and the potential damages recoverable under each theory.

Employment-litigation and emotional-distress-damage counsel can advise on the specific damages available to a successful plaintiff in a wrongful termination case, assess whether the available evidence supports claims for back pay, front pay, compensatory damages, punitive damages, and attorney's fees, and develop the damages strategy for the case.

The constructive discharge claim arises when the employee resigned rather than being terminated, and the employee contends that the resignation was compelled by working conditions so intolerable that a reasonable person in the employee's circumstances would have felt no choice but to resign, and the constructive discharge claim requires the employee to demonstrate both that the working conditions were objectively intolerable and that the employer deliberately created or maintained those intolerable conditions with the intention of forcing the employee to resign. Punitive-damages-lawsuit and hostile-work-environment counsel can advise on whether the employee who was constructively discharged has a viable wrongful termination claim, assess whether the working conditions were sufficiently intolerable to satisfy the constructive discharge standard, and develop the integrated legal strategy for pursuing both the hostile work environment and the constructive discharge claims.

The mitigation of damages obligation requires the wrongfully terminated employee to take reasonable steps to find comparable employment after the termination, because the law does not permit a wrongfully terminated employee to remain unemployed indefinitely and then recover the full amount of wages that would have been earned, and the employee who can demonstrate a diligent and good faith effort to find comparable employment satisfies the mitigation obligation even if the search has not yet resulted in a job offer. Federal-employment-law and wrongful-termination-law counsel can advise on the full range of federal and state legal claims available to a wrongfully terminated employee, assess whether the specific facts support parallel claims under multiple federal and state statutes, and develop the integrated enforcement strategy that most efficiently achieves the terminated employee's goal of full financial recovery.