How to Contest Unlawful Employee Termination

When you suspect that not everything with your termination was appropriate or legally acceptable, you often have two options. You can leave it be and move on elsewhere, or you can contest it. Contesting a termination often leads to legal action and can remedy the situation on behalf of the employee, depending on the circumstances. It is not a guaranteed solution-around 70% of wrongful termination litigation is successful for the employee-and can be a stressful and costly process.1 Those who want to contest their termination and get retribution should take the situation very seriously and consider everything that they need to do before making a final decision.

This article will explore how an employee can contest their wrongful termination and what options are available to them. Topics will include the steps they must take before filing suit, what to look for in a lawyer, and what questions they should ask themselves before going ahead with a lawsuit. A brief refresher of how to determine the legality of a termination and how to submit a claim will also be included.

How Do You Know If It Was Unlawful?
Some former employees choose to contest their termination even in cases where it was lawful and there was nothing unjust about the situation. This is often because they want their job back or they simply want a second chance to do better than they did before. For those who were or believe they were unlawfully terminated, contesting the termination is one of the few options to clear their name of any accused wrongdoing, restore their professional reputation, bring their employer to justice for illicit actions, and get things that are due to them (e.g. back pay, lost benefits, etc.).

As the entire case hands on the basis that the termination was unlawful, you need to make sure that you can back up your claim. One of the first things that must be done is to determine the legality of the termination, which may have been what caused you to take action in the first place. To determine the legality, look at some of the following areas in regards to the termination:

• The Reasoning-Unless the person was an at-will employee, a legitimate reason must be given for the termination.2 This will be found in the termination paperwork and documentation, as well as the employee's personnel file, even if the reason is not formally disclosed to the employee. The reasoning given should not violate any laws or policies, not be based on discrimination or harassment, or due to retaliation.3 Should the employee be unable to access any of those documents, they could take a closer look at what happened in their experience. For example, if the termination occurred shortly after the employee filed an internal complaint or reported a violation to an organization like OSHA. Their treatment as an employee could also be a clue as to the reasoning, as previously harmful behaviors or actions directed at them may have contributed towards an unlawful termination.

• The Handling-How the termination itself was handled could cause it to be labeled unlawful, especially if things like the employee's rights or due process was violated. Documentation made during the termination process will often disclose what steps were taken to reach the decision to terminate and what factors contributed to it. A lack of documentation should be treated as a red flag and may help your case as it could be used as evidence that the employer failed to follow proper procedure. Again, the employee can also look at their own experience of the process for anything that did not make sense or seemed suspicious.

• Breach of Contract-For contract-based employment, or even employment types that might be supplemented with a contract, any kind of breach of contract by the employer that contributed to the termination could constitute wrongful termination.4 Any kind of contract-written, oral, or implied-that both parties have entered into is legally binding, and any violations of it can lead to serious consequences. Should the termination itself be just-i.e. in line with the terms of the contract-the termination may still be unlawful based on other terms, such as those that dictate the aftermath of a termination (e.g. severance packages, pay and benefits, etc.). Simply because the employment has been terminated in accordance with the terms of the contract does not mean that the all of the terms are completely void.

? Questions To Ask Yourself First

Once the legality of the termination is established, there are still a few things that need to be taken into consideration before moving forward. There are certain questions regarding the termination and themselves that a person may need to ask to determine what actions the can to take. These questions can also help them determine if they even want to move forward and take stock of what personal risks are present in contesting the termination.

Interested in learning more? Why not take an online Lawful Employee Termination course?

• Am I Within the Statute of Limitations?-there is a set amount of time available to take action. All claims must be reported to the EEOC within 180-300 days of the termination, depending on your location, before further action can be taken. This can be done via phone, letter, electronic form, or in person at one of the 53 EEOC field offices throughout the U.S.5 The available options change once the statute of limitations has passed, so it's important not to wait and to consider how close to the deadline you are when you decide to act.

• Am I Financially Prepared for Legal Action?-To actually sue someone for something isn't cheap, regardless of the circumstances. The fees from hiring a lawyer alone, depending on what their rate is, can expand into thousands of dollars.6 Some may not charge you until a favorable verdict has been reached or they may offer some kind of deal/plan to help ease some of the financial burden the case can place on you. Regardless, it'll likely be expensive. As some people hold off on finding new work until the situation has been resolved, other financial responsibilities that may arise during this time need to be taken into consideration.

• What Proof or Evidence Do I Have?-It's very difficult to try and prove that something happened based solely on your word. Lack of proof of wrongfulness can hurt what chances you have to successfully contest the termination. Even circumstantial evidence can only get you so far. Collecting documentation regarding the termination is important largely for this reason, and failure to do so can severely limit your chances of any kind of repeal or legal action.7 Whatever proof or evidence you have to support your claim of being wrongfully terminated must be collected lawfully; you don't want to have solid proof of your employer's wrongdoing be dismissed because you got it through illicit means.

• Have I Exhausted All Internal Termination Appeal Options?-Most businesses have some kind of appeals process for terminated employees, which you can find out about by checking the employee handbook or talking to a representative from Human Resources.8 Members of the legal system will likely expect you to have exhausted all internal options, even when the termination was illegal, before turning to the courts. This may eat up some of the time you have available to meet the statute of limitations for your claim, but it can work in your favor in showing that you are serious in your efforts and provide additional evidence. Every appeals process is different but you will likely need to submit a formal letter of appeal to your employer as a start, which can be a formal declaration of your intent to appeal your termination.9

• What Other Costs Will This Bring Me?-There are other costs to contesting a termination that have nothing to do with finances. It can be a stressful and emotionally draining fight, which could be cause for concern for some (e.g. health conditions worsened by stress). There are also costs of time-the lawsuit itself, the appeals system, the EEOC's investigation, etc.-that may factor into your decision. The further impact to your reputation, both personal and professional, should also be considered as the record of your actions in this situation will be permanently associated with you. Think things over thoroughly, and talk with your family (spouse, kids, etc.) about what you plan on doing as it will affect them as well.

• Have I Done Anything That May Hurt My Claim?-There are some things that a terminated employee should definitely not do in the aftermath of their termination, as it could cause serious harm to their chances to contest their case. The behavior and actions you've displayed since being terminated (starting from the second your boss says "you're fired") will be up for scrutiny. Fighting or interfering with the termination process, badmouthing your boss, or retaliating against the company are all major don'ts that can come back to haunt you.10 Even if for those who were lawfully terminated and have no intention of contesting it, such behavior can find its way to your future employers and impact their decision to hire you. It's okay to be frustrated and upset about the situation, but don't let it ruin your chances of fixing the situation.


Finding Legal Help

It's not recommended to take any kind of legal action against an employer in a wrongful termination case without the right help by your side. Lawyers who specialize in employment law will often be your best choice in a wrongful termination suit.11 A general law attorney may not be as well acquainted with the laws and policies associated with termination cases, and may hurt your chances of success. Most employment lawyers will advertise themselves as such, so an internet search can turn up several options in your area or check with local bar associations and public interests groups.12 Stick with lawyers who are local to where you were fired (e.g. the same state); they'll be better familiar with the state and local laws that will pertain to your case.

Depending on the industry or field that you were terminated from, you may be able to seek legal help from additional sources. Employees who are a part of a union, for example, have access to resources through their membership and any collective bargaining agreements they are a part of as a result.13 Those who were employed by a government or public office, and are therefore a government employee, will have access to resources that are specific to government employees.
Presenting Your Case

Actually presenting your case is likely to be the longest part of contesting your termination. This is the point where all of your previous efforts-making the decision to take legal action, collecting evidence and documentation, etc.-come to fruition. It can also be the hardest part, as any errors you or those who are helping you make can cause significant damage to your side of the outcome. The "how" of the presentation will usually be one of two options:

• In Court Through A Civil Suit-Filing a civil suit is the most common option in contesting a termination, although there will likely be earlier efforts to resolve the situation before it reaches this point. The goal will be to reach an agreement in which the plaintiff-the terminated employee-will be granted damages (a.k.a. compensation) from the defendant-the employer-for what has been lost due to the termination.14 Lawyers from both sides will present their arguments and evidence, and it will be up to the jury and/or judge to reach a conclusion about the case and determine if any compensation will be made. In some cases, the defendant may settle the suit-pay the requested damages, other demands-before it goes to court and that will end things then and there. Criminal charges will not be brought against the employer unless there are grounds to do so; the terminated employee will not receive anything in a criminal case, but will still be involved (e.g. as a witness).

• Through Arbitration-If there is an arbitration agreement in place, then a lawsuit isn't an available option except in very rare circumstances. The case can still be addressed and damages issued, but it won't be done in a court of law. Instead of a judge, an arbitrator will be hired to mediate the situation, hear both sides, and reach a conclusion.15 It will likely be a faster option to resolve a dispute, but the outcome cannot be appealed and is permanent. It's also difficult to obtain evidence or share information from the opposite party in an arbitration case, so an employer may have an unfair advantage over the contesting employee.