Our survey showed that many employees who believed they had wrongful termination claims were fired for reasons that may have been unfair but weren’t illegal.
If you’ve been fired from your job and the circumstances seem unfair, you may be wondering if you can successfully sue your former employer for what’s known as “wrongful termination” and get compensated for your financial losses. Not all firings that are unfair are illegal. We recently surveyed readers who had wrongful termination claims. Here’s what we learned about the reasons they were fired—including reasons that weren’t illegal—and the outcome of their cases.
What Makes a Firing Illegal?
Overall, less than half of our readers (43%) won their wrongful termination case. Why is the percentage so low? One clear take-away from our survey: Many employees have misconceptions about what makes a termination wrongful under the law.
In general, employers don’t need a good reason—or any reason—to fire their employees, because most employment is “at will.” But federal and state laws do carve out several exceptions. For example, employers typically cannot fire at-will employees for the following reasons:
- discrimination based on a “protected characteristic,” such as race, color, national origin, religion, gender, pregnancy, disability, genetic information, or age (over 40)
- refusal to protect you from harassment based on protected characteristics
- retaliation for exercising a legal right or for reporting certain unlawful activities
- failure to provide reasonable accommodation for your disability, pregnancy, or religious beliefs
- refusal to give you time off that you’re legally entitled to take, or
- violation of an employment contract or the company’s own policies.
(Learn more about illegal reasons for firing and survey results on what types of wrongful termination claims are most successful.)
Common Reasons for Firing That Aren’t Illegal
If your former employer’s actions weren’t illegal under any of the exceptions to the at-will rule, your wrongful termination claim probably won’t go far. That can be frustrating, but it’s better to know earlier rather than later whether you have a chance of receiving any compensation for your troubles.
We asked our readers about the circumstances of their termination. Many of them—especially those who didn’t receive a settlement or award—gave several common firing reasons that don’t amount to wrongful termination under the law, even if they seem unfair or just plain wrong.
Run-of-the mill harassment or bullying. It’s a common misconception that any type of workplace harassment is illegal. However, laws that require employers to protect their employees from illegal workplace harassment apply only when you’re being targeted because of a protected characteristic. So you could have an illegal harassment claim under federal law if you were fired or forced to quit because you were subject to severe or pervasive harassment based on your gender, disability, ethnicity, or religion—and your employer didn’t deal with the situation properly, even you after filed a complaint. You might also have a claim under state law if your state protects additional characteristics, such as sexual orientation or gender identity.
But many readers told us their supervisors or coworkers bullied them because of a personality conflict or just because they didn’t like them. Unless that behavior was based on their ethnicity or another protected characteristic, they probably didn’t have a legitimate wrongful termination claim.
Favoritism or unfair treatment. Many readers told us that they were fired because their boss wanted to hire a friend or family member, or a new manager wanted a fresh start with new staff. Others spoke of being disciplined for infractions that coworkers got away with (like lateness), or being subject to requirements not applied to other employees (like having to sign a credit report authorization). Another common complaint came from readers who were wrongfully accused of misconduct. Unfortunately, unless the unfair treatment was based on a protected characteristic or there was another illegal reason behind these actions, these employees would not have a legitimate wrongful termination claim.
Absences that aren’t legally protected leave. More than half of the readers with an unsuccessful wrongful termination claim based on leave told us they were fired for taking personal leave, bereavement leave, or too much sick leave for minor or temporary illnesses. The federal Family and Medical Leave Act doesn’t protect employees who take time off for these reasons (although some states have sick leave laws, and at least one state requires bereavement leave.)
Social media posts. Some readers said they were fired for something they wrote on social media. Constitutional free speech rights don’t apply to those who work for private employers, but certain types of online speech may be protected under federal and state laws. Federal laws protect employees’ rights to communicate with each other about pay issues and workplace conditions, or to raise concerns about their employers’ illegal activity. And some states prohibit employers from disciplining employees for expressing political views. But in general, employers can legally fire employees for posting statements or pictures that could be seen as racist or sexist, or that reveal trade secrets or confidential information. (For more details, see Nolo’s article on whether employees can be fired for blogging or social media posts.)
Getting More Information
Employers often don’t tell employees the real reason they’re being let go. So if you suspect that your firing was illegal, you should talk to an employment lawyer about the circumstances around your firing. An attorney can tell you whether your employer’s actions might be illegal and whether you have a good chance of receiving compensation for your financial losses.