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By: Mark S. Schuver

When most people are fired by their employer, they believe they were treated unfairly or wrongfully terminated. While that may be true, not every wrongful termination is an “unlawful” termination.

Unless you have a contract of employment, a collective bargaining agreement or some enforceable terms of employment that state otherwise, all employees are generally considered to be “employees at-will.” This means that your employer can fire you for a good reason, a bad reason or no reason at all. In general, the only time that the law steps in to do something to protect an employee from being terminated is if your employer fires you for an “unlawful” reason. Unless the employer fires you for an “unlawful” reason, the law generally allows employers the freedom to run their businesses and to hire and fire employees as they deem fit.

A Good Reason, a Bad Reason or No Reason at All; Just Not an Unlawful Reason

Let’s take a look at the lawful and unlawful reasons for terminating an employee’s employment.

A Good Reason

Typical examples of a good reason for termination include:
• Excessive absences and tardiness,
• Violating company rules; poor work performance,
• Violence in the workplace,
• Failing a drug or alcohol test,
• Theft, and
• Other forms of misconduct.

In most instances, if the employer has terminated your employment due to one of these reasons, there may be very little that an attorney can do to help you out.

A Bad Reason

An employer can fire you for a bad reason as long as it is not an “unlawful” reason. Bad reasons are ones where you likely disagree with the employer’s decision to fire you, but unfortunately there may be very little that an attorney can do about it. Examples include:
• Your employer fires you simply because they decide that they don’t like you, or your personality clashes with a supervisor or co-worker. The law will not generally step in to force people to like each other.
• The employer mistakenly believes that you did something wrong or mistakenly believes that you were involved in some type of misconduct. For instance, an employer may mistakenly believe that you stole something or violated a company policy or procedure, even though you really weren’t the person responsible. As long as the employer legitimately believes you did something wrong, there may be very little that the law can do to stop the employer from firing you. In those instances, your best bet is often times to simply explain the circumstances to your employer in the hopes that they will realize their mistake and reconsider their decision.

No Reason At All

Yes, an employer can fire you for no reason at all. As a practical matter, this does not typically happen because very few employers would be so callous as to fire an employee for no reason at all. Generally, most employers have at least some reason for firing an employee. The question may be whether that reason was lawful or unlawful.

An Unlawful Reason

Where the law does step in is where the employer fires you for an “unlawful” reason. The list of unlawful reasons can vary from state-to-state and, in some circumstances, from city-to-city based on the applicable law in a particular jurisdiction.

In general, the list of “unlawful” reasons can be broken down into two major categories: (1) where you can show that the employer was motivated to unlawfully terminate your employment because you were a member of a “protected class” and (2) where you can show that the employer was motivated to terminate your employment because you were involved in some “protected activity.”

(1) Protected Class: A protected class is a group of people with a common characteristic who are legally protected from discrimination on the basis of that characteristic. Various laws prohibit employers from discriminating against and/or terminating an employee if the reason or motivation for why they discriminated against or terminated that employee is due, in whole or in part, to their membership in a protected class. Protected classes most often include, but are not necessarily limited to, the following:
• Race,
• Color,
• Religion,
• Sex,
• Sexual orientation,
• National origin,
• Disability, and
• Age (40 or over)

This is just a partial list and not all jurisdictions recognize each of these categories. Moreover, just because you are a member of a particular class does not mean that you are protected from termination. If the employer fires you for a good reason, a bad reason, or no reason at all, just because you are a member of a particular class (which everybody is) does not mean that you have been unlawfully terminated. The key is whether or not the employer terminated you because you are a member of a protected class. For example, if you are Asian, an employer can lawfully terminate your employment for theft. However, an employer cannot lawfully terminate you because you are Asian. The employer’s motivation is the key, and the burden of proving the employer’s motivation is most often placed on the employee who is claiming that he or she was unlawfully terminated.

(2) Protected Activity: Employers can be prohibited under the law from firing an employee not just for who they are (Protected Class), but also for what they do (Protected Activity). Under certain circumstances, the law protects employees from retaliation or termination by their employer for undertaking certain activities that are deemed important to the safety, security and functioning of society. Again, this list may vary by jurisdiction and is not necessarily exclusive, but the most common Protected Activities include the following:
• Exercising your rights to file or pursue a worker’s compensation claim,
• Reporting unlawful or criminal activity by your employer to legal authorities,
• Refusing to perform tasks that would violate a safety regulation,
• Refusing to follow orders that would result in unlawful discrimination,
• Resisting sexual advances,
• Intervening to protect others from unlawful discrimination, and
• Being a witness in a proceeding or investigation into unlawful discrimination.

For example, if you’re a truck driver and you refuse to drive a truck because it is unsafe or because to do so would otherwise violate some safety regulation, it may be unlawful for your employer to terminate you. Likewise, if you suffer a work-related injury and ask that your employer pay for your medical expenses or time off of work under a worker’s compensation law, it is generally unlawful for an employer to retaliate against you for asserting your legal rights to compensation or benefits.

Finally, a word needs to be said about “Pretext.” Just because an employer tells you that they are terminating you for a good reason, a bad reason or no reason at all does not mean that what they are telling you is true. Sometimes employers seek to get around the law by claiming that they are firing you because of a lawful reason, when in reality they are firing you for an unlawful reason. This is called a “pretext.” The burden of proving that the reason given by an employer is a pretext for what really is an unlawful reason is most often placed on the employee claiming that he or she was unlawfully terminated – – but not always. Sometimes the law shifts these burdens of proof onto the employer.

If you are terminated from your employment unlawfully, you may be entitled to substantial damages including, but not limited to, compensation for lost back pay and front pay, compensation for lost benefits, emotional distress, pain and suffering, attorney’s fees and punitive damages.

Determining whether you were terminated lawfully or unlawfully can be complicated. If you believe that you were terminated from your employment unlawfully, you should immediately contact a qualified employment law attorney, such as Mark Schuver and the Employment Law Team at Mathis, Marifian & Richter, Ltd. They will help you analyze your case and, if you have a claim, obtain the compensation that you are entitled to receive under the law.

Mark Schuver is a shareholder with MMR with over 30 years of experience in civil litigation, employment law, personal injury and product liability. You may call him to set up a free consultation to discuss your claim at 618-234-9800. All consultations are confidential.

Professional Services Disclaimer: Please note that the information presented here is as an educational service, and while it contains information about legal issues, it is not legal advice. No warranty is made regarding the applicability of the information presented to a particular client situation, and the information set forth is not a substitute for original legal research, analysis and drafting for a particular client situation.