Most employers are allowed to fire employees for any reason and at any time. However, employers are not allowed to fire employees for illegal reasons, in violation of public policy, or in breach of an employment contract. For example, employers can’t fire employees based on illegally discriminatory reasons, for serving in the military or on a jury, or in violation of the clauses included in employment contracts. Some statutes protect employees from being terminated in violation of their provisions. Here are some examples of when termination might be unlawful from the attorneys at Swartz Swidler.
Firing Someone in Violation of Anti-Discrimination Laws
Title VII of the Civil Rights Act of 1964, several other federal laws, and the New Jersey Law Against Discrimination make it illegal for employers to discriminate against employees based on the following protected characteristics:
- National origin
- Gender identity
- Sexual orientation
- Genetic information
- Military status
- Family status
If an employer fires an employee based on any of these protected characteristics, the termination is illegal. For example, if an employer fires an employee after learning about the employee’s sexual orientation, the employee might have grounds to pursue a wrongful termination lawsuit.
Harassment Leading to Termination
Harassment based on an employee’s protected characteristics is considered to be a form of illegal discrimination. While workers can be harassed based on any of the above-listed protected characteristics, two of the most common types of harassment are based on an employee’s sex or race.
Unlawful sexual or racial harassment can form the basis of a lawsuit when the actions are so severe or pervasive that they create a hostile work environment. A hostile work environment interferes with the employee’s ability to perform their job to such an extent that a reasonable person would find the environment to be hostile. Wrongful termination can include either firing a harassed employee or constructive discharge. For example, if an employee’s work environment becomes so unbearable because of the ongoing harassment that they see no other choice than to resign, this would be a constructive discharge.
Retaliation for Filing a Workers’ Compensation Claim
While employers are required to carry workers’ compensation to protect workers who are injured on the job, some employers try to retaliate against employees who file workers’ compensation claims. They might do so to try to deter others from filing claims and try to keep their workers’ compensation insurance premiums from increasing. It is illegal for employers to fire employees for filing workers’ compensation claims. They also can’t threaten them with firing if they participate in an investigation or agree to testify as a witness on behalf of a different employee in a workers’ compensation hearing.
Terminating an Employee for Taking Leave under The Family and Medical Leave Act
Employers with 50 or more employees who work within 75 miles of each other are covered by the Family and Medical Leave Act (FMLA). They must provide job-protected leave to eligible employees for up to 12 weeks when the employee needs to care for their serious medical condition or the serious medical condition of a close family member. If an employer fires an employee for taking leave under this act or refuses to return them to their former job or one that is substantially similar, the employee can file a wrongful termination lawsuit.
Wrongful Termination in Violation of Public Policy
Some employees are fired in violation of public policy. For example, if your employer fired you for serving on a jury or reporting for military duty, you have the right to pursue a wrongful termination lawsuit. Similarly, if you were fired after you refused to do something illegal upon your employer’s request, you would likely have a viable wrongful termination case.
Several federal and state whistleblower laws incentivize workers to report their employer’s illegal conduct against the government. These laws also protect employees who blow the whistle and prohibit employers from retaliating against them. For example, if you reported your employer’s illegal scheme to defraud Medicare by submitting fraudulent claims and were fired, you might have grounds to file a retaliatory discharge claim against your employer.
Determining Whether Your Employer Wrongfully Terminated You
If you are wondering whether your termination was wrongful, ask yourself the following questions:
- Did your employer fire you because of your protected characteristic?
- Did your employer refuse to return you to your job or fire you for taking leave under the FMLA?
- Did you feel you had no choice but to resign because of ongoing harassment at work?
- Did your employer fire you when you filed a workers’ compensation claim?
- Were you fired after you participated in an investigation or reported your employer to the government for illegal activities?
- Were you fired for refusing to engage in illegal conduct?
Speak to a Wrongful Termination Lawyer
If you believe your termination might have been unlawful, you should consult an employment lawyer at Swartz Swidler. Our attorneys can evaluate your case and explain whether it has legal merits. Call us for a free consultation at (856) 685-7420.