When a person suspects that their termination was unlawful, they may not be sure of what the actual illegal reason behind it is. You're not always going to be told why you were fired, as employers often are not required to provide or disclose a reason at the time of your termination. While there is usually an official reason given-for the sake of formality with paperwork and documentation, and which may be disclosed to the employee when needed-it may not make any sense or it may be vague. Not knowing the truth or having an idea of what the possible truth might be can make it difficult to determine the legality of your termination, as discussed in the previous lesson.
This article will look at what the actual reason(s) for an unlawful termination might be. These are some of the more common explanations for what actually is going on versus what you might have been told. Topics will include warning signs to look for with each reason and what needs to be done to help prove unlawful termination. Some examples of reasons for your termination that you may be given instead, which may alert you that something is wrong, and what they can mean in your efforts to prove your termination was unlawful.
When employers terminate someone based on unlawful or illegal grounds, they often will give a different explanation in order to hide the real one and to avoid punishment. This is often referred to as pretext, which is defined as misleading behavior or excuse(s) designed to cover or conceal true intentions.1 The key factor with pretext is the employer needs to be aware that what they are doing is wrong and that the explanation they are giving is false. It also helps if employee is able to tell that what they are being told is a lie, which can be difficult because some may be unaware or oblivious about the true state of their performance and behavior. You may think that you work well with others and that your employer's reasoning for your termination of "you're not a team player" is pretext, but your co-workers might not agree with you.
Discrimination of any kind in the workplace is unfortunately common. In the 2016 fiscal year, the EEOC received a total of 91,503 discrimination charges that were reported to them throughout the country.4 That includes discrimination based on things such as race, religion, sexual orientation, and disability as well as discrimination that occurred through business practices like hiring, termination, and pay, and general treatment or harassment. Not counted in that are any instances that were only reported at the state or local level and cases that went unreported.
Due to anti-discrimination laws, termination based on discrimination is highly illegal. An employer who is firing someone based on discrimination may offer pretext or withhold their reason because they know that there are likely to be serious consequences for their actions. They may also have prejudices that are based in discrimination that they may try to justify with an additional reason in an attempt to make an unlawful termination lawful. The inclusion of discrimination in other unsavory workplace behavior like bullying or harassment-which requires a justifiable explanation as to why the person was targeted-can legitimize any claims of unlawful termination when such behaviors are involved.5
Punishment for doing something like reporting illegal activities in the workplace (a.k.a. whistleblowing) or doing something that you have every legal right to do is considered retaliation.6 Even speaking out about something in the workplace, like harassment directed at yourself or a colleague, can cause retaliation. This can include things like being harassed or increased harassment, unexplained negative impacts to your pay or benefits, threats, termination, and other adverse behavior directed at you. It can be subtle sometimes, but there is usually at least one instance where the retaliation is obvious-being fired or demoted shortly after filling a complaint against your supervisor, for example.7
It's been established that employees have rights that they are legally allowed to exert in the workplace, such as the right to privacy or to have a safe working environment. As a result, employers by law are not allowed to impinge upon these rights or punish an employee for asserting their rights.8 Any punishment that is directed at an employee may be considered retaliation, as mentioned above. However, the punishment itself may violate their rights as well, even if there is justifiable reasons for the punishment. Violating an employee's right to privacy, for example, while investigating claims of wrongdoing can invalidate the entire process. If you fire Tim for stealing inventory, but only proved that he was doing so by breaking into his car and finding the stolen products, then Tim may be able to contest his termination as unlawful because you violated his legally given rights. Now if you catch Tim in the act of stealing inventory via security cameras placed in the business, then you're not violating his privacy so long as those cameras are not in places like the bathroom.
False Accusations and Defamation
There are some instances where an employee is unlawfully terminated because they are made into the scapegoat for someone else's actions. There may be elements of favoritism (which isn't illegal) or self-incrimination that causes an employer to protect someone by shifting the blame to another person. False accusations of wrongdoing can also come from peers and other co-workers, who may have questionable motivations for doing so. Any false statements they make to your employer, especially if the goal is to get you fired or otherwise punished, can be considered defamation and grounds for rendering your termination unlawful.9
Determining if your termination was the result of false accusations and/or defamation usually requires looking at the reasoning and evidence given to support your termination. Pretext in these kinds of cases is very important because it is the biggest warning sign, and there's often something noticeably wrong (to you) about it. The evidence itself might have been faked to implicate you or you have evidence that strongly contradicts it. For example, someone steals or destroys company data from your computer but you were at a doctor's appointment when it happened. Or witnesses who back up an accusation with a lie are unable to keep their stories straight or make errors.
An employment termination can be rendered unlawful should the reasoning violate any kind of policy, either public or company based. Public policies vary from state to state, but they usually deal with things that may be viewed as morally wrong.11 This can include things like legal rights and ethics, which often influence laws and actions to begin with. Most company policies need to be in line with those public policies, so being fired based upon a contradictory company policy could be grounds for unlawful termination. This means that they need to be kept up to date and accurate to ensure the legitimacy of a violation or compliant behavior. Changes in public policy usually means that any policies the company has in relation need to be changed as well; fail to do so and any application of that policy may be deemed illegal or unlawful based on the public policy that supersedes it.
Mishandling the Termination Process
There is only so much that an employer can request of their employees, not just in terms of the law, but in regards to public policies and practicality as well. An employee cannot be told to do something that may be viewed as illegal or in violation of laws or agreements and be punished for refusing to do it.13 Making them to do something under threat or force and then firing them for it later on also isn't acceptable because they did so under duress from you, their employer/supervisor/manager/etc. Refusing demands that may be more unreasonable rather than inappropriate or illegal isn't acceptable either. Things like constantly making them stay late or having them do things that are not their responsibility can be viewed as unreasonable, especially if you are not properly compensating them for the overtime or the risk of liability. It is entirely within their rights to refuse to do something that they deem is unreasonable, unsafe, or inappropriate and not be punished for doing so.
- Coming To Terms With The Outcome For Employers of the Termination Process
- The Need for A Termination Checklist for Lawful Employee Termination
- Additional Information to Know about Lawful Employment Termination
- The Process of Determining the Legality of Employment Termination
- Understanding Employment Laws
- Employment Law: How to Terminate the Employment of an Employee
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