| . By Jane Mundy |
Washington, DC: According to a number of insurance companies, wrongful termination lawsuits are on the rise—and they are the single most frequent labor claim. Even though most employment in the US is considered "at will," wrongful employment termination claims have spiked for a number of reasons, mainly because the economy has caused an unprecedented number of lay-offs and terminations.
Another reason for a rise in wrongful termination suits is because employees increasingly understand wrongful termination law. In a situation where an employee understands wrongful employee termination and their employer doesn't, the grounds are fertile for a potential wrongful termination lawsuit.
The increase in wrongful termination claims (mainly involving discrimination and sexual harassment) can also be attributed to laws such as the Americans With Disabilities Act of 1990, the Civil Rights Act of 1991 and the Family And Medical Leave Act of 1993. Because some areas of these laws are vague, they are open to interpretation; an experienced wrongful termination attorney familiar with the Acts is often the reason why the plaintiff wins.
Over 50 percent of all wrongful termination cases are won by the former employee (up to 70 percent in some districts) and there are more than 20 legal grounds for making a claim for wrongful termination or discharge. Clearly, "at-will" employment doesn't mean that an employee has no legal rights if they are terminated from a job.
So what are grounds to make a wrongful termination claim?
A wrongful termination attorney will basically study four areas of the law to determine whether their client has a case, including federal and state statutes, public policy, good faith and fair dealing, and implied contracts. Grounds for a wrongful termination case include anti-discrimination laws (e.g., firing a person because of race, age, sex, religion, sexual preference, positive HIV/AIDS tests, disability, height, weight, arrest record, marital status, genetic carrier status and military service).
If employers violate a public policy, they have likely planted the seed for a wrongful termination case. Some examples of violating public policy include:
- Whistle blower retaliation
- Termination for jury duty
- Refusal to break the law at the request of the employer
- Invasion of Privacy
- Defamation of Character
In 2009, Financial Executive discussed five common mistakes made by employers that could result in a wrongful termination lawsuit. In a nutshell:
1. The Employee Manual does not properly address procedures for termination.
2. The context in which managers deliver termination communication is important: ambiguous statements, such as "If it was up to me, you'd still be working here," or "It looks as though we most likely won't be able to keep you on," may cause a legal situation.
3. If charged with discrimination, your employer must prove that the termination was business-related. Managers who neglect to document policy violations and inadequate performance make it challenging to support the company's defense. Managers must support any employment actions, including performance reviews and subsequent write-ups for poor performance, and firings with complete and appropriate documentation.
4. Documents that include managers' personal remarks, hyperbole and emotionally laden rhetoric will benefit the employee in a wrongful termination case. Your employer or immediate supervisor can easily add inappropriate comments when documenting violations such as wrongful conduct, intoxication or drugs, tardiness, unsatisfactory work quality, or violation of safety rules.
5. If not prepared for and executed properly, a termination meeting can lead to litigation. An employer must respond calmly to an employee's behavior and make sure to have a witness in the room as well as the supervisor. An employee should be fired in a controlled, calm and professional manner.
If you have been in any one of these situations, you may have grounds for a wrongful termination lawsuit. Whatever grounds you may have, a wrongful termination claim does not usually reach the point where your employer may reinstate you and/or compensate you for back-pay and warranted damages. Instead, the majority of wrongful termination claims are settled at the initial phase—when your employer is looking for a bargain. This phase is crucial to your settlement and imperative that you have a wrongful termination attorney on your side.
