If you have been fired from your job, you may be wondering if you have a case for wrongful termination. Unfortunately, there is no one-size-fits-all answer to this question. Every situation is different, and it is important to speak with an employment lawyer to find out if you have a valid claim.

In this blog post, we will discuss some of the basics of wrongful termination law in the United States. We will also explore some of the factors that are taken into consideration when determining whether or not a firing was unlawful.

What is Employment? When are you Employed?

In order to discuss wrongful termination, it is first important to understand what employment is.

Generally speaking, employment is a contract between an employer and an employee. This contract can be either written or oral, and it outlines the duties of the employee as well as the rights of the employer. The contract may also include other terms and conditions, such as the length of the employment, salary, and benefits.

Contract of Employment vs Contract for Services

It is important to note that there is a difference between a contract of employment and a contract for services.

A contract of employment

A contract of employment is an agreement between an employer and an employee in which the employee agrees to work for the employer in exchange for certain benefits, such as a salary, vacation days, and health insurance.

A contract for services

A contract for services, on the other hand, is an agreement between an employer and a contractor in which the contractor agrees to perform certain services for the employer in exchange for a fee.

In most cases, employees are covered by a contract of employment, while contractors are covered by a contract for services and general laws of contract.

At-Will Employment

In the United States, employees are considered “at will.” This means that an employer can fire an employee at any time and for any reason.

There are, however, a few exceptions to this rule. One exception is if the firing violates a contract that the employee has with the employer. Another exception is if the firing is based on discrimination or retaliation.

Termination of Employment

Employment can be terminated by either the employer or the employee. When an employer ends the employment, this is called “termination.” There are two types of termination: voluntary and involuntary.

Voluntary termination occurs when the employee decides to end the employment relationship. This can happen for a variety of reasons, such as retirement, resignation, or getting a new job.

Involuntary termination, on the other hand, occurs when the employer ends the employment relationship. This can happen for a variety of reasons, such as getting fired, being laid off, or quitting due to intolerable working conditions.

Notice and Payment in Lieu of Notice

In some cases, an employer may terminate an employee without notice. However, in most cases, the employer is required to give the employee advance notice of the termination. This is called “notice.”

Notice can be either written or oral, and it must be given to the employee before the termination takes place. The amount of notice that an employer is required to give an employee depends on the laws of the state in which the employer is located. In many cases, notice is equivalent to one payment period.

For example, if an employee is paid weekly, the employer would be required to give the employee one week’s notice. If the employee is paid monthly, the employer would be required to give the employee one month’s notice.

In some cases, an employer may choose to pay the employee in lieu of notice. This is called “payment in lieu of notice.” Payment in lieu of notice is a one-time payment that is made to the employee in place of the notice that they would normally receive.

The amount of the payment is typically equivalent to the amount of wages that the employee would have earned during the notice period.

While payment in lieu of notice is not required by law, it is often included in employment contracts.

Summary Dismissal

In some cases, an employer may choose to summarily dismiss an employee. Summary dismissal is a type of termination that is used in cases of gross misconduct.

Gross misconduct is any type of behavior that is so severe that it justifies immediate dismissal. Examples of gross misconduct include theft, fraud, assault, and drug use.

Employees who are summarily dismissed are not entitled to notice or payment in lieu of notice.

Reasons for Termination Without Notice

There are a few reasons why an employer may choose to terminate an employee without notice.

Misconduct

The most common reason is misconduct. Misconduct is any type of behavior that violates the employer’s rules or expectations. Examples of misconduct include being late for work, skipping work, sleeping on the job, stealing from the employer, and assaulting another employee.

In most cases, an employee who engages in misconduct will be given a warning before being terminated. However, in some cases, the misconduct is so severe that the employer may choose to terminate the employee without notice.

Offence

Another reason why an employer may choose to terminate an employee without notice is if the employee has committed a serious offence. Offences that may result in termination without notice include fraud, theft, assault, and drug use.

In some cases, an employer may choose to suspend an employee pending an investigation into the offence. However, if the employer decides that the employee is guilty of the offence, they may choose to terminate the employee without notice.

Breach of Contract

Another reason for termination without notice is if the employee has breached their contract. A breach of contract is any action that goes against the terms of the employment contract.

For example, if an employee violates a confidentiality clause in their contract, they may be terminated without notice.

What is Wrongful Termination?

Wrongful termination occurs when an employer breaks the law by firing an employee. There are a few different ways that an employer can break the law, such as:

• Firing an employee for a reason that is not allowed by law
• Firing an employee in violation of their contract

When is Firing Unlawful?

When determining whether or not a firing was unlawful, courts will look at several factors. These factors include:

• The circumstances of the termination,
• Whether the employer had a valid reason for firing the employee, and
• Whether the firing violated public policy.

It is important to note that there is no bright-line test for determining whether or not a firing was wrongful.

Reasons You Can Be Fired: Justification for Termination of Employment.

There are a number of reasons that an employer may give for firing an employee. Some of these reasons may be valid, while others may not be.

Some common examples of valid reasons for firing an employee include:

• Poor job performance,
• Attendance issues,
• Violating company policy, or
• Engaging in criminal activity.

On the other hand, there are also a number of reasons that an employer may give for firing an employee that are not valid. These invalid reasons include:

• Firing someone because of their race, gender, religion, or national origin;
• Firing someone in retaliation for filing a complaint or engaging in protected activity (such as reporting harassment or discrimination);
• Firing someone because they refused to do something illegal; or
• Firing someone in violation of their contract.

Determining whether or not the reason given by the employer is valid can be a complex process. Courts will often look at the circumstances surrounding the termination to make this determination.

For example, if an employer fired an employee for attendance issues, but the employee had never been warned about their attendance, the court may find that the firing was invalid.

On the other hand, if an employer fired an employee for poor job performance, but the employee had received multiple warnings about their performance, the court is more likely to find that the firing was valid.

Factors Used to Determine if a Firing Was Unlawful

As we mentioned before, there is no bright-line test for determining whether or not a firing was wrongful. Instead, courts will look at a number of factors to make this determination.

Some of the factors that courts will look at include:

• The circumstances of the termination,
• Whether the employer had a valid reason for firing the employee, and
• Whether the firing violated public policy.

It is important to note that each case is unique, and that the outcome will depend on the specific facts and circumstances involved.

What Qualifies as Wrongful Termination?

Here are six questions to ask yourself if you are wondering if you can sue for wrongful termination:

1. Was I given sufficient notice? 

Your employer can dismiss you for almost any reason, so long as it is not discriminatory. However, whatever the employer’s reasons for dismissal are, they must give you sufficient notice of the termination. A wrongful dismissal is a termination without sufficient notice.

1. Was I dismissed for a discriminatory reason? 

If you believe you were fired for discriminatory reasons related to your age, race, ethnicity, gender, pregnancy, religion, sexual orientation, or another protected ground, it does not matter whether your employer gave you sufficient notice. Dismissing for discriminatory reasons is unlawful. This is different from wrongful dismissal, and you may have both cases at once if the employer dismissed you for discriminatory reasons and did not give you sufficient notice.

1. Was the dismissal within the limitation period?

The law provides a limitation period from the date you received notice of termination to commence a lawsuit in a wrongful termination case. If you have not issued proceedings in court before the limitation period ends, you can not sue for wrongful dismissal.

1. Did my employer change a fundamental term of the contract? 

There are many ways your employer may change the terms of your employment without your consent. Often these are fundamental breaches of the employment that result in constructive dismissal. Such changes may include reducing your pay, changing your title or duties, reducing your reporting staff, changing your work hours, or creating a toxic work environment, to name a few. In such cases, you should seek legal advice immediately: putting up with the changes for too long can mean that legally, you’ve accepted the changes.

1. Did I violate the employment contract? 

The employer may have cause to dismiss you if you have fundamentally breached the employment contract. This is often described as “serious employee misconduct during the employment relationship that strikes at the very root of the employment contract such that it can be said that the employment contract cannot continue or be repaired”. If you have given cause, you can be dismissed immediately without reasonable notice or severance. Often the employer claims it has cause, when in fact it does not. Even if your employer has dismissed you and alleged cause, you may still have been wrongfully dismissed and be entitled to severance pay.

1. Did I “resign” under duress? 

When you resign voluntarily, you are not entitled to severance pay from your employer – this means you cannot sue the employer for wrongful dismissal. However, a forced resignation is a form of wrongful dismissal and you are entitled to severance pay.

How do you Prove Wrongful Termination?

If you believe that you have been the victim of wrongful termination, there are a few things that you will need to do in order to prove your case.

First, you will need to gather evidence to support your claim. This evidence can include:

• Eyewitness testimony,
• Documentation of the events leading up to your termination,
• Your employment contract,
• Policies from your employer, or
• Any other documentation that you think will be helpful.

Once you have gathered this evidence, you will need to speak with an experienced employment lawyer. They will be able to review your case and advise you on the best course of action.

Suing Your Employer

If you decide to sue your employer for wrongful termination, you will need to file a lawsuit in court. This can be a complex and time-consuming process, so it is important to speak with a lawyer before taking any action.

Once you have filed your lawsuit, the court will review the evidence and decide whether or not you have a valid claim. If the court decides in your favor, you may be awarded remedies and/or damages.

8 Remedies fo Wrongful Termination

If you have been wrongfully dismissed, you may be entitled to one or more of the following remedies:

Reinstatement: 

This is where the court orders your employer to take you back as an employee.

Compensation in lieu of reinstatement: 

This is where the court orders your employer to pay you a sum of money instead of reinstating you as an employee.

Damages: 

This is where the court orders your employer to pay you a sum of money for the loss you have suffered as a result of the dismissal. The amount of damages will depend on many factors, including the length of your employment, your age, and the availability of similar employment.

Notice period: 

This is where the court orders your employer to pay you for the notice period that they did not give you. The notice period is usually set out in your employment contract.

Severance pay: 

This is where the court orders your employer to pay you a sum of money in lieu of the notice period. The amount of severance pay is usually set out in your employment contract.

Special damages: 

This is where the court orders your employer to pay you for any special damages that you have suffered as a result of the dismissal, such as the cost of retraining or relocation.

Punitive damages: 

This is where the court orders your employer to pay you a sum of money as punishment for their actions. Punitive damages are very rare in wrongful dismissal cases. 

Costs: 

This is where the court orders your employer to pay some or all of your legal costs.

It is important to note that if you have been wrongfully dismissed, you may be entitled to more than one remedy. The remedies that are available to you will depend on the facts of your case.

Conclusion

If you have been fired from your job, it is important to speak with an employment lawyer to find out if you have a case for wrongful termination. There is no one-size-fits-all answer to this question, and every situation is different. However, if you have been wrongfully dismissed, you may be entitled to one or more of the following remedies: reinstatement, compensation in lieu of reinstatement, damages, notice period, severance pay, special damages, punitive damages, or costs.