If you think you have been wrongfully terminated, this guide will show you what steps you need to take.
Remember that time is of the essence:
- You have 21 days from your termination to consider any severance packages the employer has offered (since they usually ask you to waive any ADEA claims), and 7 days to change your mind.
- If you were terminated due to discrimination, you can seek counsel from an EEO counselor for 45 days from the day the discrimination occured.
- If you need to file a charge at the EEOC, you need to do it within 180 calendar days.
Stage 1: Document everything about your job and termination
Make sure you have written documents of everything that might be usable during the case. This even includes things like jotting down a derogatory comment from your employer. Include the time, date, place, and names of people present with all of these notes.
It is important to consistently keep written records of everything you deem important, so make sure you write everything down as described above, while it’s still on top of mind.
Specifically, here are the things you’ll want to have:
- Official paperwork
- Personal file
- Termination notice (if you were fired in person, write down the contents of the conversation, to have it documented)
- Performance reviews
- Employee handbooks or policies (some states considere these implied contracts)
- Employment contract
- Union contracts (as union contracts supersede the “at-will” doctrine)
- Print out official communications, for example reprimands/condemnations
- Pay stubs (having this also helps prove how much money you lost due to the wrongful termination)
- Co-worker interviews – If you were fired because of specific reasons (for example an error, being tardy, etc.), talk to your colleagues, to find out if they’ve made the same mistakes, but have gotten different treatment.
- Records of events you deem important
Remember that employers usually like to ask the fired individual to leave the premises as soon as possible. This means that it’s a good idea to have the documents at home in advance.
Step 2: Find an employment attorney
The intricacies of wrongful termination make it difficult to decide for yourself, whether you have a case or not.
A qualified lawyer needs to analyze your specific situation, and give you his/her opinion.
The lawyer will also have knowledge of your local regulations and anti-discrimination laws. It may happen, that local regulations are stricter on employers than those set forth by the ADEA, or you may have a local Fair Employment Practices Agency (FEPA) that has different standards than the federal Equal Employment Opportunity Commission (EEOC), who enforces the ADEA.
- First time meetings with lawyers are usually free, so getting an initial opinion during a consultation won’t necessarily cost any money.
- If the lawyer accepts your case, aim for a contingency fee agreement, where the attorney only gets paid, if the case is won.
- Typically, lawyers ask for 30-40% of the awarded amount.
- The official costs associated with a lawsuit, such as filing fees, services fees, fees paid to witnesses, court reporter expenses, etc., have to be paid by you. Make sure you have enough money set aside for this.
Step 3: Filing a complaint
Your lawyer will know the official forum where you need to file the complaint, based on the cause of your wrongful termination:
- Breach of employment contract lawsuit are filed in civil court (either state or federal)
- Wrongful termination claims due to discrimination are filed at the Equal Employment Opportunity Commission (EEOC), or a relevant state agency. If found valid by the EEOC, you and your lawyer will be able to take further action against the employer. Otherwise not.
The EEOC has a self assessment tool, to find out if filing with the EEOC is right for your case.
Your attorney will write your complaint for you. Here is a sample of a wrongful termination complaint.
Your former employer must be served notice. This can be done through one of the following methods:
- Return receipt requested, certified mail
- County sheriff
- Professional process server
Once your notice has been served, it must be filed with the court clerk. Without this, the court will not hear your case.
Step 4: Proving that your termination was illegal
Once everything has been filed, the actual process of litigation may begin.
Getting your case to court involves the following steps:
I. Discovery process
Before a case goes to trial, each side must share all of the relevant documents and information with the other, that would be used to prove the case. This is called the discovery process.
There are 3 parts to the discovery process:
- Written discovery: Each side submits written questions to the other, known as interrogatories. The questions must be answered, unless there is a legal reason not to.
- Document production: Each side can ask for documents relevant to the case. If you need any official company documents, such as your personal file, employee handbooks, process checklists, etc., this is the time to ask for them.
- Depositions: Each side can interview the other side, as well as any of the witnesses in the case. The person being deposed is under oath to tell the truth, and is recorded by a court reporter. Make sure you are well prepared for your deposition, doing as many deposition preparation sessions with your lawyer as needed.
Remember that you may be offered a settlement by your previous employer at any time during the process, which has many benefits over taking your case to court. Trials are stressful, have a long timeline, and in the end, you may not even win.
II. Alternative dispute resolution
You may decide that mediation or arbitration would be more preferable than going to court. In fact, some courts require parties to attempt some sort of mediation, before setting a trial date.
- Mediation helps in the parties reaching a compromise, with the help of a neutral third party.
- Arbitration is a simplified trial, where the rules of discovery and procedures are simplified.
III. Going to trial
If no settlement has been offered, and neither mediation nor arbitration have produced results, you will proceed with the lawsuit and go to trial.
At court, both parties will present their evidence and witnesses. The decision on who wins will be made by the judge or jury.