When you are looking into a potentially unlawful termination, there may be certain elements that can cause additional complications. These can impact things such as determining the lawfulness of the situation, if it can be contested in a court of law, and what actions can be taken. These elements are usually tied to the circumstances surrounding the termination, either how it was carried out or what lead to the decision being made to fire the employee. Such special circumstances are simply going to make what is likely an already complicated and difficult situation more complicated and difficult.
Knowing what some of those special circumstances are and their potential impact can make it easier to navigate the situation and take action. This article will explore several special circumstances and discuss their associated details and ramifications on unlawful employee termination. This is a combination of common and uncommon examples, and not necessarily a guarantee that any of these circumstances might be present in any kind of termination case.
A termination is often deemed unlawful because some part of it violated a law or policy designed to protect things like employee rights. However, sometimes those laws and policies are not very clear to begin with, which can make it difficult to determine what counts as a legal violation. This isn't something that is excessively common due to aspects of the legal system that work to prevent such instances; there is a constitutional rule called that vagueness doctrine that requires laws-specifically those related to criminal activity-to be explicit in its definition of punishable conduct.1 A law's vagueness might not be something that is caught right away when it is first passed or even when it is put into use. It is only voided when challenged in court or when lawmakers pass other laws that impact it, which usually draws attention to its vagueness.
Public and company policies can also be vague, which can be an issue if such a policy is used as grounds for a termination. Because it may not be clear if the proposed violation is in fact a violation, it does bring into question the decisions that were based on it. If a policy states that employees may not use their computers for non-work purposes, but does not define what such purposes may be, then how can you determine if someone has violated the policy? Take social media usage for example, which has business uses (e.g. marketing, customer outreach) in addition to personal uses. The vagueness of such a policy may incorrectly punish an employee who is required to use the business' social media accounts as a part of their job duties; should they be terminated for regularly violating such a policy, they may have a case for unlawful termination based on the nature of their responsibilities.
Lack of Information
A terminated employee may not have enough information to be able to determine if they have grounds for a wrongful termination case. There is going to be paperwork from a termination, no matter what the circumstances surrounding it are, and it's often recommended that a terminated employee collect copies of any relevant documentation.2 These documents will often list information regarding the reason(s) for a termination, any evidence that supports it, and what was done to reach the final decision to terminate employment. Unfortunately, the information that is found in the documentation may not be enough to clearly determine if the termination was in fact unlawful. The reasoning, for example, could be just a general statement of cause-e.g. "insubordination"-without further explanation. Seeking more information-asking the employer for clarification or requesting your personnel file-may be fruitful and can fill in any blanks.3 However, it might not and you're still stuck with the same problem as before. This may be used to your advantage, should it be argued that there was not enough evidence or grounds based on the information provided by your employer to truly warrant your termination.
There is a certain amount of time in which an employee can take action regarding their unlawful termination. This includes submitting complaints to the EEOC, investigating and documenting their termination, and filing any lawsuits against their former employer-events which often need to be done in that order.4 The statute of limitations begins, and ends to some degree, with any EEOC discrimination filings. Location occasionally dictates how much time is available to file the charge, but it stands at 180 days should there not be any additional enforcement of employment discrimination on the state level.5 If there are state anti-discrimination laws that are enforced, then the deadline is extended to 300 days. A lawsuit can then be filed once the EEOC investigates and sends a "right to sue" letter to the employee, which must be done within 90 days of the letter's issue. Of course, once the lawsuit has been filed, there aren't any additional deadlines to take action and the statute of limitations are no longer a concern.
As these statute of limitations are in place, it is important to not wait on taking action. This doesn't mean you should jump into a lawsuit unprepared because you feel rushed to do something about your unlawful termination. However, if you did wait too long and the deadline to act has passed, your options become significantly limited. Filling a lawsuit for something like defamation, for example, could still be possible if it's applicable to the situation.
There are some things that may be unfair, but are not at all illegal. Favoritism is one such thing that may seem like it is illegal in the workplace but there is no law against it. However that does not mean that favoritism isn't problematic; it often can lead to resentment amongst employees and can inadvertently create a toxic work environment.6 An employee who is favored by their employer or supervisor has a significant advantage over their peers who are not held to the same esteem. As a favorite, they may be able to get away with minor offenses or receive reduced punishments for more serious infarctions.
Favoritism could lead to illegal activity that may contribute to a wrongful termination or other illicit treatment, depending on the circumstances. Should the favoritism be made known, that employee may become a target of their co-workers' emotions and that may cause instances of harassment, discrimination, or other illegal activity. Depending on how such a situation is handled by the business, there may be grounds for a civil suit for any harm that was inflicted.7 The employee at whom the favoritism is directed at may not benefit from it or it may be unwanted, and thus have grounds as well. Favoritism can develop into sexual harassment, especially if the favoritism comes with the expectation that the employee will give into any sexual requests or favors their employer may ask of them as a sign of gratitude for the treatment, or quid pro quo harassment.8 The employee's treatment and the expectations can also lead to further harassment from their peers and negative harm to their reputation, as co-workers may view any sexually based favoritism (even unwanted) as a sign that the employee is using sex instead of their own merit or ability to advance their career in the business.
Situations often change when family is involved, and this is no different with unlawful terminations. Most of the business world frowns on nepotism, or displaying favoritism towards relatives and friends in your business practices, unless you're dealing with a family run business.9 As mentioned above, favoritism of any kind can cause issues regardless of if it is wanted or unwanted. When that favoritism is based upon familial ties, it can get even more complicated and messy to deal with.
Should there be a familial connection between the employee and employer in a wrongful termination case, questions about the impact that that relationship on the reasoning usually arise. Where is the line drawn? Is this actually a case of wrongful termination due to some form of discrimination or is it simply part of a larger family squabble that has nothing to do with the termination? For employees who are not family members: how much does their non-relative status play into their termination and/or treatment as an employee? Are they discriminated against simply because of it? It can be a bit of a legal grey area that can make any lawyer scratch their head due to the different connections and the connotations familial ties can have on employment practices.
Illegal Business Practices
An employer's illegal business practices may also bring into question the legitimacy of other aspects of an employee's employment, not just their termination. This additional scrutiny could also cause further delays with a wrongful termination suit as a closer look is taken to determine the full scope of the associated violations. In some cases, the employee's own actions may come under scrutiny and there may be questions about the extent of their knowledge regarding their employer's illicit actions. Should there be evidence that the employee knew and was complicit in some or all of their boss' illegal behavior, then they may face charges themselves. For some, this may deter their efforts to contest a wrongful termination as it may be too high of a cost or risk than what they are seeking.
Contract and Agreement Details
Contracts in employment often detail multiple aspects of the employee-employer relationship and the terms of the person's employment with the company. Sometimes, these terms can also limit what options can be taken in the event of a breach of contract, termination, or other altering of the arrangement. Things like arbitration agreements, for example, are commonly included in a standard employment contract or is a part of the paperwork filed out when a person is first hired. Arbitration is an alternative to a lawsuit where complaints and legal disagreements between parties will be heard by a neutral party (an arbitrator) who makes a decision on the complaint based on what information is provided from both sides.10 They are a faster, informal, and less costly option than a lawsuit (which is now prohibited when an arbitration agreement is signed), but the lack of appeals and the difficulties in requesting evidence from the other side can put an employee at a disadvantage. Not signing the contract isn't an option either when you're first hired, as an employer may rescind the job offer.
Another contractual detail or document that may impeded actions that can be taken is a release of claims. This is a document signed upon termination that negates earlier terms of employment and is designed to limit the possibility of litigation from the employee later on.11 Employees usually sign a release of claims in exchange for a severance package, but it can halt any plans to take action against their employer for suspected wrongdoing; if they speak out against their employer or files a suit against them, they lose the severance package. For employees who have signed a release of claims or arbitration agreement, this may present significant challenges moving forward. In such cases, it's best to consult legal counsel to get a better grasp of what options are available and what risks there may be should you act against these documents.