Documenting the Termination
Record your impressions of the termination. Write down all the circumstances of your termination while they are fresh in your mind. Create a timeline of events, when you were notified and when you were asked to leave. Document the names of everyone involved. Get copies of all paperwork. Be sure to have a copy of your termination notice.
Secure a copy of your personnel file. Ideally, you will have kept a record of all official communications, such as prior reprimands or commendations, as well as informal comments and information about raises. Employers sometimes like to hustle people out of the building immediately after being terminated. You may not have time to return to your office and make copies to take home with you. Store copies of annual reviews, correspondence, emails, and employee handbooks at home. In this way you will have easy access to this material.
Keep pay stubs and financial records. You will need to prove how much the wrongful termination cost you in money. Pay stubs will help establish the amount of wages you lost.
Speak to co-workers to uncover if you are being singled out. If you were fired for making an error, speak to coworkers who also made the same error. If someone else made the same mistake but did not receive the same punishment, this could be proof of discrimination. Common reasons for termination are poor job performance and absenteeism. Your termination letter should specify your violation. Particularly seek out co-workers who differ from you in terms of age, race, gender, or religion. If they were treated differently, then you may have strong evidence of discriminatory intent.
Send a follow-up email to your supervisor. If you are fired in person, follow up with an email to your supervisor summarizing the contents of the discussion. This might be the sole record of the meeting you have. Stay professional and don’t send the email until you can avoid being argumentative. The purpose of the email is simply to document the discussion. If you do not feel comfortable sending an email, then simply makes notes about the conversation as soon as possible.
Analyzing Your Case
Determine if you work in an "at will" state. Every state except for Montana is considered at will. This means employers can terminate your employment at any time. There are important limitations to “at will” termination. For example, your employer cannot fire you for an illegal reason, such as gender or racial discrimination, or in retaliation for you exercising a legal right. You may also not be fired for refusing to perform an illegal act. Also, an employer may not make your work environment so uncomfortable that he can anticipate that you will quit. This is called "constructive discharge."
Look for an employment contract. If you signed a contract when you began working, that contract should spell out the terms of your employment and the steps for termination.
Gather employee handbooks and policy manuals. Some states will consider handbooks, policy manuals and other documentation as creating “implied contracts” between employer and employee. Your implied contract might entitle you to a notice period or severance pay before being terminated. Language in a handbook must be sufficiently clear that a reasonable employee would believe that a contract is being offered. For example, language such as “shall” or “must” or “never” before a promise is sufficiently clear evidence of a contractual promise. But a clear disclaimer stating you have been hired “at will” and that the handbook is not a contract trumps any implied contract.
Review a union contract. A union contract supersedes the “at will” doctrine. The union contract should spell out grounds for dismissal, as well as employer procedure.
Speak to an attorney. Employment law differs from state to state, and the facts of your case are unique. Only a qualified employment attorney can offer tailored legal information. To find an attorney, contact your state bar association. They should have a referral system. If costs are a concern, most attorneys will represent you under a contingency fee agreement. Under this arrangement, an attorney only gets paid if she wins your case. Typically, she will get around 30-40% of the award amount. Under a contingency fee agreement, clients still most pay for costs, such as filing and service fees, so be sure to budget for that.
Filing a Complaint
Find the appropriate forum. If you have a breach of contract claim, then you may file for suit in civil court. However, if you allege discrimination, you probably need to exhaust administrative remedies first at either the state or federal level. If you allege discrimination based on race, religion, sex, national origin, age, disability, color, genetic information, or retaliation, then file a complaint with the Equal Employment Opportunity Commission (EEOC). You may also file discrimination claims with state agencies. For example, in California, almost all plaintiffs file with the California Department of Fair Employment and Housing because the state agency's rules are more advantageous that the federal ones. In California, you can also request an immediate right to sue and skip the administrative process. Constructive discharge suits are brought in both state and federal courts.
Perform a self-assessment. Visit the EEOC’s online self-assessment tool to find out if the EEOC is the right agency for you to file with. You have 45 days from the discriminatory action to contact an EEOC counselor. Be prompt.
Fill out a complaint. You initiate a wrongful termination suit by filling out the appropriate form. The correct form depends on whether you are suing for breach of contract or filing a complaint for discrimination/retaliation with the EEOC or a comparable state agency. In state court actions for breach of contract, you may secure a blank complaint form from the County Clerk. You will fill in your name as plaintiff and your employer’s name as defendant. You initiate the EEOC process by first contacting the office. An EEOC counselor will discuss your rights with you. After your final interview, your counselor will give you a letter with information about how to file the complaint. State agency rules may differ from the EEOC. If you choose to file with a state agency, contact them about proper requirements and procedures.
File soon. Whether filing a breach of contract claim in state court or a complaint with an administrative agency like the EEOC, you cannot sit on your rights. You must file before certain deadlines. Statute of limitations for breach of contract vary by state. In California, you must file suit within 4 years. In Illinois, you have 10 years. You must file a formal complaint with the EEOC within 15 days of receiving notice from your counselor about how to proceed. File the complaint at the EEOC office where you were counseled.
Allege illegal termination. In order to win a wrongful termination lawsuit, you will need to prove that your termination was illegal. If suing for breach of contract, you should quote the contract provision your employer violated. For example, if you were promised employment for 3 years, quote the provision that says that. Attach a copy of the employment contract to your complaint. In an EEOC formal complaint, you must include your name, address, and telephone number; a short description of the discriminatory events; why you believe you were discriminated/retaliated against (e.g., race); and a description of any injury you have suffered. The complaint must also be signed by you or your lawyer.
Proceeding with a Lawsuit
Perform discovery. In a lawsuit, each side is able to request documents in the possession or control of the other party. If you don't already have copies of your employee handbook or personnel file, then you can request them now. Ask for copies of internal checklists or procedures. Companies routinely require that checklists be followed when firing someone. If your employer deviated from established protocol, you may have evidence that discrimination or retaliation was the real motivation.
Sit for your deposition. In addition to exchanging documents, each side is allowed to question witnesses before trial begins in order to establish what each witness knows. As the plaintiff, you most assuredly will be asked to sit for a deposition. Prepare thoroughly. Sit down with your attorney and run through questions you will be asked. Be sure to do as many deposition preps as necessary to feel comfortable. At the deposition, be sure that you understand the questions thoroughly. Also, never guess; answer “I don’t remember” if you do not remember information.
Oppose the defendant’s motion for summary judgment. Many employment suits are dismissed before trial. A defendant will allege that there are no factual disputes to be resolved at trial and that the defendant is entitled to judgment as a matter of law.
Entertain settlement. If the defendant fails to secure summary judgment, it may want to settle. There are many factors you must consider before accepting or rejecting a settlement: How strong your case is. You might lose at trial. With a settlement, you at least will gain some compensation. The amount offered. If your case is strong but the settlement amount is low, you might want to proceed to trial or counteroffer for a higher amount. Discuss this with your attorney. The emotional burden of trial. At trial, the defendant will paint an unflattering picture of you. Cross-examination on the witness stand may also be stressful. If you want to avoid these stressful situations, a settlement may be ideal.
Go to trial. If settlement talks fail, then only a trial will vindicate your rights. At trial, your attorney will examine witnesses, present evidence, and make a final argument to the judge or jury. Prepare to testify. Undoubtedly you will be called to testify at trial. You will be asked about your job performance and about your working relationship with others. Prepare the same way you did for the deposition. Assist your lawyer by getting her any documents she needs. Any delays only hurt your case.
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