Two surefire techniques for getting sued when firing someone
August 2nd, 2019
“I just got fired, and it wasn’t fair. Can I sue my former employer?”
Employment lawyers hear this question pretty frequently. Getting fired rarely feels fair, and sometimes it really isn’t fair. But it does not always follow that the recently-ousted employee has a good legal case against his or her former employer.
Generally, unless there is an employment contract or other binding document such as an employee handbook that gives the employee specific rights, there are only two reasons an employer might face legal consequences for an improper firing:
1. Discrimination against an employee who is in a protected class
Protected classes are defined by statute and include race, gender, age, religious belief, and disability. (At least one court has also held that gender includes sexual orientation.) If an employee was treated differently from other employees because of his or her membership in a protected class, there may be a discrimination claim.
2. Retaliation against an employee who engaged in a protected activity
This is commonly known as “whistleblower” protection. If an employee was fired or disciplined for reporting or refusing to engage in illegal behavior or behavior that is against public policy (like unethical behavior that harms the public), the employee may have a claim. Public policy can be in the eye of the beholder, so if you think this applies to you (either as an employer or as an employee), seek the advice of counsel. There may be similar situations that have come up in your jurisdiction that give you some guidance, and a good lawyer can help you assess your risk.
Discrimination and retaliation claims can be hard to prove, and are a burden to defend. Whether you are an employer or an employee, it is important to be aware of the law, and to know when to ask counsel how you can best protect yourself from either an improper firing or a false claim of one.
This blog was written by Wilson Worley, which authors our Tennessee Human Resources Manual and our Virginia Human Resources Manual. You can find the original and their Labor & Employment blog on their website.