Unfair dismissal: Has your employer broken the law and what action can you take?

By Nick Branch, writer for Contact Law

Being dismissed unfairly can be a traumatic experience, not to mention financially damaging. It is well known that most people employed in the U.S. are subject to “dismissal at will.” However, this doesn’t mean that your employer has unrestricted freedom to fire you. In some circumstances, an employer may act unlawfully in dismissing someone. This is called “wrongful dismissal;” also known as “wrongful termination” or “wrongful discharge.”

Just being dismissed unfairly isn’t enough to claim wrongful dismissal. You must have been fired for a reason specifically deemed unlawful. Situations that may constitute wrongful dismissal vary between states, but here’s an overview:

• Retaliation: Your job is terminated in response to your taking steps protected by public policy in that state. For example, reporting your employer for illegal activity, making a legal claim against them, whistle blowing or refusing sexual advances.
• Discrimination: Your dismissal is motivated by something such as age, race, gender, nationality, sexual orientation, religious belief or disability.
• Breach of explicit or implied contract overriding dismissal at will status: For example, your employment contract or the HR handbook might set out a specific disciplinary pattern, which will be followed before dismissal.
• Character defamation: The basis of the termination was an untruthful allegation made maliciously by the employer, which makes it hard for you to find new work.
• Breach of covenant of good faith and fair dealing: Your employer dismisses you to avoid dealing with you in good faith or in a fair, ethical and honest way. For example, to avoid giving you a promised raise. This is not recognized in all states.
• Constructive discharge: You’re forced to resign, because your employer has made working conditions intolerable.

What you can do
If you have been wrongfully dismissed, you can pursue a legal claim against your employer. In some states, this needs to be done directly against the employer as a civil lawsuit, whereas in others you need to file a claim through the government agency responsible for labor laws. If you have been wrongfully dismissed due to discrimination, it’s normally necessary to make an initial complaint to the government’s Equal Employment Opportunity Commission.

If your employer is found to have wrongfully dismissed you, the solutions depend on the state in question. In some cases, it might be a set penalty, and in others the company might be required to reinstate you or pay damages for your lost wages and expenses. In some circumstances, the employer might have to pay additional punitive damages.

Labor law varies significantly from state to state. In addition to finding out whether you have actually been wrongfully dismissed, it’s important to consider the chance of making a successful claim, as wrongful dismissal can be hard to prove. You can find information about each state’s labor laws via the Department of Labor and your state’s labor department; however, you may want to consult an employment lawyer about unfair dismissal in the state of question.

Nick Branch received his LLB from University of the West of England in 2004. He then went on to work as a director of 2 property-related businesses. Nick’s current legal expertise covers employment, commercial, and property law. To learn about different unfair dismissal cases, visit Contact Law to find out more.