Wrongful Termination Law FAQs
Discrimination and retaliation in the workplace are, unfortunately, more common than you might think. Often times these actions result in wrongful termination or create an intolerable work environment that is stressful and unreasonable. If you believe that you have been wrongfully terminated or are working in an intolerable work environment, you are probably wondering what your rights and options are.
Use this Q&A list below to understand your rights and get answers to some of the most commonly asked questions on wrongful termination. Click a question to jump to the FAQ answer.
- What is wrongful termination?
- What is the difference between an at-will employee and an employee with an employment agreement?
- What is the “right to work” and does it apply to me?
- Do I have to give two weeks notice to my employer before I leave?
- My boss is a bully. He swears at and picks on me. Do I have the right to sue?
- What reasons for termination are potentially unlawful?
- What is the statue of limitations on bringing a wrongful termination suit?
- Is my employer required to tell me the reason for my termination?
- My employer is making my working environment intolerable. I can’t work in this environment but I need a job. Can I do anything?
- Can I file for unemployment if I am fired?
- What is the pregnancy discrimination act?
- How can I protect myself in the workplace if I think my employer is considering firing me for a potentially unlawful reason such as I am pregnant?
- My employer just handed me a performance improvement plan (PIP). What does this mean? Should I be worried?
- What are the most common types of discrimination in the workplace?
- How do I know if I have a case?
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What is wrongful termination?
Wrongful termination occurs when an employer terminates an employee’s employment because the employee either engaged in an act that public policy promotes, such as taking leave under the FMLA, or refuses to engage in an act that public policy condemns, such as accounting fraud. If an employer terminates an employee for such a reason while acting in bad faith or retaliating against the employee, it could constitute wrongful termination. Some other reasons why an employer may terminate an employee are discrimination, retaliation, fraud, filing a wage claim, or complaining about violation of the labor laws.
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What is the difference between an at-will employee and an employee with an employment agreement?
Most employees are at-will employees, which means that an employer has the right to fire the employee at any time for any reason as long as it is not for a potentially unlawful reason. The same is true for the employee who has the right to end employment at any time for any reason.
Some employees, however, have signed employment agreements. Typically these are salaried, high-level managerial positions. In these cases, the employee usually has a contractual right to employment for a certain length of time, at a certain pay and with specific benefits. These agreements usually also define when an employer may terminate employment and for what reasons. Generally, there are two options:
- Termination “For cause”– this is usually defined as allowing termination when an employee intentionally violates company policy, engages in a criminal act, engages in misconduct that adversely affects the company or other similar conduct. Generally, if the termination is “for cause” the employer does not have to pay severance.
- Termination “Without Cause” – This usually means any reason for termination other than “for cause” such as poor performance, restructuring, or similar reasons. In this instance, the employers generally provide that they will provide the employee 30 days notice and the employee, usually, is entitled to severance as outlined in their agreement.
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What is the “right to work” and does it apply to me?
This is an often times misunderstood concept. Generally, the term “right to work” refers to an individual having the legal right to work at a place of employment without being required to a join a union. This term varies from state to state. It does not mean, as is commonly asked, that an employee has a “right” to continued employment.
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Do I have to give two weeks notice to my employer before I leave?
No, there is no law requiring you to give two weeks notice. If you are an at will employee (which you likely are unless you have a contract outlining your employment dates and pay) you can leave whenever you want and the employer can terminate your employment whenever it wants as long as the reason for doing so is not potentially unlawful.
You may have signed an offer letter or acceptance letter when you were hired that outlined your terms of employment. This is different from an employment agreement. It is just identifying the terms of your employment such as wages, position, and responsibilities. Frequently, these letters identify that employees will provide 2 weeks notice. At the same time, however, they also usually state that they do not form a “contract of employment.” There are many reasons for these conflicting terms. In short, the notice provision is something that an employee “may” want to provide as a matter of courtesy, but usually it is not something that the law requires.
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My boss is a bully. He swears at and picks on me. Do I have the right to sue?
Not always. Unfortunately, there is currently no law against “bullying” in the workplace. The work environment can be and many times is a difficult one involving tension, stress, and fear. The law, at present, does not address “bullying” by a supervisor. It does, however, prohibit conduct directed toward an employee that is discriminatory, retaliatory, unwelcome in a sexual way, or involves unlawful physical harm. If you are being subjected to conduct, therefore, that you believe is bullying, intimidating or harassing, it is important that you consult an attorney who may be able to identify whether the conduct is happening for unlawful reasons.
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What reasons for termination are potentially unlawful?
While employers have the right to terminate employees at any time and for any reason, there are limitations. An employer cannot terminate your employment based on:
- Discrimination based on age, disability, race, religion, gender or ethnicity
- Sexual harassment claims
- Retaliation
- Taking medical leave under FMLA
- Pregnancy leave
- Whistleblower claims
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What is the statue of limitations on bringing a wrongful termination suit?
This is very important. A statute of limitations is the date when you must file a claim or the ability to pursue such a claim is lost. Generally, the statute of limitations for a wrongful termination claim is three years from the date of the adverse employment action. In many instances, however, such a claim involves other legal issues such as discrimination, retaliation, or violations of the law that have a much shorter statute of limitations. Certain claims, for example, sexual harassment under Title VII of federal law must be filed with the applicable state administrative agency, the New Hampshire Human Rights Commission, within 180 days of the date of the offending conduct. It is critically important, therefore, that if you think you have a potential employment claim, or even just want to find out if you have a potential claim, that you consult an attorney to learn more about your potential rights.
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Is my employer required to tell me the reason for my termination?
No. In fact, it is usually recommended that employers not give a reason for termination.
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My employer is making my working environment intolerable. I can’t work in this environment but I need a job. Can I do anything?
Yes. If your employer is making your work environment so intolerable that no reasonable and objective person could continue working there, then you may have a claim for constructive discharge. This means that you can leave employment and assert a claim against your employer. You do not have to place your physical or emotional health at issue just to continue working.
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Can I file for unemployment if I am fired?
Yes. You can file for unemployment if you are fired but your employer will also have the right to contest your claim. If they do so, you can provide the New Hampshire Employment Security an explanation of why you allege you were fired. If it was for a reason that was potentially unlawful, such as discrimination or retaliation, you will likely qualify for unemployment benefits. Each case, however, is different.
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What is the pregnancy discrimination act?
The pregnancy discrimination act provides that “discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII. Women affected by pregnancy or related conditions must be treated in the same manner as other applicants or employees who are similar in their ability or inability to work,” according to the U.S. Equal Employment Opportunity Commission.
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How can I protect myself in the workplace if I think my employer is considering firing me for a potentially unlawful reason such as I am pregnant?
If you are worried you are going to be fired for an unlawful reason or you have just been fired, the best thing to do is to contact an attorney. As explained above, there is potentially a short period of time when you must assert your legal rights and there are also things, such as notifying your employer of its obligation to preserve evidence that your lawyer can address.
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My employer just handed me a performance improvement plan (PIP). What does this mean? Should I be worried?
Typically when an employee receives a PIP, it is not good sign. The best thing to do in this scenario is to keep doing your job, but carefully observe what is occurring in the workplace. If anything material changes about your employment such as hours, salary, responsibilities, your reporting channel, access etc., contact a lawyer.
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What are the most common types of discrimination in the workplace?
It is hard to identify particular types because each case is different. However, the most common types we see involve discrimination based on sex, disability, age discrimination, race, and pregnancy.
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How do I know if I have a case?
By reading through all of the information on this page you should now have a better idea as to your basic rights in the workplace. If you feel like you have been subjected to an intolerable work environment, are being set up for termination, or have been fired and you believe it was wrong or for unlawful reasons, contact an employment lawyer.
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If you believe you have a wrongful termination case, you need legal counsel that is both thorough and effective. Contact us to schedule a free initial consultation or call us at 603.570.4837.