How to prove wrongful termination in 8 steps

Employment at-will is the standard form of employment in most of the USA (except for Montana), meaning employers can fire or demote employees at any time. However, there are federal and local state laws that prohibit adverse employment action under specific circumstances.

If you’ve recently been fired and have started thinking about how to prove your wrongful termination claim, here is an outline of how many employees who have been wrongfully discharged have uncovered their case.

Employers are usually careful, and wrongful termination is usually not evident. Proving wrongful termination is not easy, but not impossible. Here is how.

Gather your employment documents

Your employment status need to be clearly documented to prove your claim, so you will need to gather all of your employment documents:

  • Personnel file
  • Employment agreement/contract
  • Employee handbook
  • Workplace policies
  • Job evaluations
  • Union contracts
  • Pay stubs
  • Memos
  • Termination notice if it came in writing, or a memo of the conversation if the termination was oral

The law acknowledges the use of oral contracts. To prove them, you need some sort of written memo of the conversation. If you can’t present a memo of an oral contract, proving it will be hard, as you would expect. All parties remember oral contracts differently.

Almost 40 states acknowledge implied contracts as well, so you’ll want to check whether you were employed in such a state. An implied contract is one which can be implied by the actions of the employer. Proving implied contracts is hard, since they are not documented because they are not specific.

Write down the details of your termination

When you get fired, you want to sit down and think through everything that happened leading up to your termination. It’s important you do this, as you might forget material facts later on.

Get a paper and pencil (or a keyboard and Word) and jot down everything relevant:

  1. Make an exact timeline of events as they happened.
    In most cases, wrongful termination begins long before the actual act of being fired takes place.
  2. Include job performance evaluations and their dates. Being fired despite positive reviews can be a sign of wrongful termination.
  3. Think through who was involved directly (bosses, HR) and indirectly (colleagues, clients, etc.) in your termination, and write down their names and roles in the process.
  4. Jot down how the actual act of being termination transpired. Who was there, what was said, what reasons were given (if any).

Every little detail could matter, so gather your thoughts and write down everything you deem important.




Determine if you are/were an at-will employee

Many employees are surprised to learn about employment at-will. Based on the employment at-will doctrine, employers can fire anybody with a valid reason, or without one. Being cruel or unfair (within the limits of law) is not ground for a wrongful termination case.

Montana is the only state that has not adopted the employment at-will doctrine by default.

As such, most employers in the US have adopted at-will policies, since being able to make employment decisions without repercussions make things easier for them. Many employers even have new employees sign a written document explicitly stating that they acknowledge that they are employed at-will.

Not all employees are at-will though.

Even if you live in an at-will state, you are not an at-will employee if you are:

  • a public employee that is employed under civil service regulations,
  • a member of a union collective agreement,
  • employed based on a written, oral or sometimes implied contract.

If you are not an at-will employee, you will need to prove it.

Were any laws broken?

There are several laws that prohibit adverse employer action given specific circumstances, called “protected activities”. These laws were created with the intent of keeping wrongful discrimination out of the workplace, and making sure employers abide by general law.

If you were fired because of one of these discriminatory or retaliatory reasons, you probably have a good case worth pursuing:

  • Age discrimination: Given a certain company size, employees who are older than 40 years of age are protected against discrimination. If a younger employee was treated better than one over 40, it provides a strong basis for age discrimination.
  • Constructive discharge: When the work environment is made so intolerable that a person has no choice but to quit, they are constructively discharged. Proving constructive dismissal cases is rather difficult.
  • Mental or physical disability: The law prohibits adverse treatment of people with disabilities. In fact, reasonable accommodations must be provided upon request, to help the disabled person work on. If reasonable accommodations are not provided, or a disabled person is blatantly fired, a wrongful termination claim may be filed.
  • Breach of employment contract: There are 3 kinds of contracts that the law acknowledges. Written, oral and implied. Written contracts are simple to prove. Oral contracts need some sort of documentation to be valid, such as a memo of a discussion. Your boss saying things like “You are a great employee and your job here is guaranteed for 3 years” is an oral contract. Implied contracts are harder to prove, and are not acknowledged in every state.
  • Gender discrimination: If you were treated differently than others because of your gender, you were discriminated against. Such claims are common not just with regard to wrongful termination, but also not receiving a promotion, as some bosses favor men over women.
  • Filing a worker’s compensation claim: Firing a worker who is filing for a compensation claim because of an on-the-job injury equates to retaliation.
  • Pregnancy discrimination: Pregnant women are protected from discrimination and they are also guaranteed maternal leave. If a pregnant woman is fired, demoted, or not given reasonable accommodation for a pregnancy related disability, the employer is risking a lawsuit.
  • Public policy violation: If an employee is retaliated against for following public policy, a wrongful termination case may be presented in most states. This includes things such as the employer refusing to do something illegal, reporting illegal or unsafe conduct, or exercising a legal right (voting, jury duty, etc.)
  • Race, color, nationality discrimination: Who would think that racial discrimination is still one of the leading types of claims submitted to the EEOC. If you were discriminated against because of your race, you definitely have a case.
  • Retaliation: Employers are people as well, and when an employee does something that the employer doesn’t agree with, retaliation might come into play. At-will employees can be fired for any reason, but if retaliation happens for an unlawful reason (for example opposing discrimination or reporting a wrongdoing), it might prove your wrongful discharge.
  • Sexual orientation: The rights of all employees have to be respected, regardless of their sexual orientation. An increasing number of states are enacting laws to protect LGBT employees.
  • Whistleblowing: Many laws protect the rights of whistleblowers, but actually blowing the whistle on your employer is a big decision. Reporting fraud against the government, safety threats, etc. are very serious allegations that can have an impact on the life of the whistleblower and his/her family. There are right and wrong ways to do it, so if this concerns you, you might want to visit our whistleblower page.

You may find that the state you worked in has extra laws that prohibit unlawful discharge beside the federal laws.

You can learn more about the above termination reasons and read some typical cases on our wrongful termination reasons page.

If you were an at-will employee, the only way you can bring a wrongful termination claim is if your employer violated a law and fired your because of one of the reasons outlined above.

If you believe you were fired due to one of the reasons above, here are some tips on proving it:

  1. You need to demonstrate that your employer knew about your protected activity before firing you. This is evident in racial discrimination cases, but may not be so obvious in others. For example, alleging discrimination due to a disability if the employer didn’t even know you were disabled is hard.
  2. Time matters a lot. The shorter the time span between the employer learning about a protected activity and the adverse action, the more likely it is to have caused it.
  3. Any form of verbal harassment or criticism your employer might have taken against you with regard to a protected activity (or a group of protected employees) can count as evidence.
  4. Employers will always have a seemingly legitimate reason handy for firing you, such as an economic downturn, poor performance, company policy violations, being late, etc. Disproving their official reasoning or showing that other similar employees were not fired strengthens your wrongful termination case.
  5. Demonstrate that you were singled out due to being part of a protected class or having engaged in a protected activity.

You will find a collection of real cases and settlements/awards on our wrongful termination settlements by state page.

Talk with an attorney

If you haven’t started looking for an attorney yet, this is where you need to find one and get some legal advice.

Being fired is a personal shock, evoking all kinds of feelings. Fright, anger, disbelief, injustice, to name a few. You need to speak with a lawyer to find out whether you actually have a case worth pursuing.

If you just want to have a quick chat with an attorney, we recommend the lawyers on JustAnswer.com. They are online 24/7 to quickly answer your questions.

If you are ready to talk face to face with an attorney, you need to find an experienced employment lawyer in your state.

First time consultations with lawyers are usually free, and they will tell you straight out what your chances are of reaching a settlement or winning a case.

You might be asking yourself, “Do I really need a lawyer?”

The answer is a definite yes. Here’s why:

  • the legal system is very complicated
  • your employer will have lawyers who will eat you for lunch if you don’t have legal representation
  • the experience an employment lawyer brings to the table with regard to cases like yours and employers like yours is vital
  • the lawyer will negotiate a higher settlement than you could
  • the EEOC is overburdened and will most likely just issue a right to sue letter instead of pursuing your claim

If a law firm accepts your case, they will charge anywhere between 30-40% of your winnings. This sounds like a lot, but remember: you most likely will not win your case without a lawyer, and the lawyer will reach a higher settlement/award than you could by yourself.

prove-wrongful-termination-lawyers

Co-worker interviews

Talk with your old colleagues about your termination. Your goal here is not to solicit empathy with you and sabotage your ex-employer, but to gather information that could be relevant in your case.

These would include:

  • If you were fired for a specific reason, talk with your old co-workers to see if they know of anybody else who had similar circumstances, but got different treatment.
  • You want to talk to ex-colleagues in various age/gender/race groups, to see if a pattern of treating any group differently can be revealed.

If you were singled out in some way, you may have been the victim of discrimination.

File your claim in a timely manner

The legal system has statues of limitation for filing claims. This means that there are very specific deadlines for filing a wrongful termination claim against your employer.

If you miss the deadline, you risk your case being thrown out of court.

Your lawyer will advise you on the deadlines of your specific case in your state, but you’ll probably want to check our page on the deadlines to filing wrongful termination claim.

Where you file your claim will depends on your alleged reason for being fired:

  • A suit in civil court is filed for breach of contract claims.
  • Discrimination cases need to be filed with the Equal Employment Opportunity Commission or with a similar agency in your state. The EEOC has an online questionnaire to help you decide if you should be filing there.
  • If the state you worked in has local laws on wrongful termination, it may be more advantageous for you to file your claim with the local agency.

Your lawyer will help you in filing your case appropriately and on time.

Start looking for a new job

You need to get back on wagon and look for a new job. This is important not just because everybody needs an income, but also because the court will look at whether you made a reasonable effort to find a new job.

People are expected to mitigate their losses. If your employer can prove you did not do so, it can have a negative effect on your lost earnings claim in court.

If you are struggling financially and are offered a job with a lower pay, know that you may be eligible to receive lost front pay if you win your wrongful termination case. Studies have shown that it takes a person anywhere between 3 and 5 years to catch up with regard to pay, so you might be able to claim the difference.

On that note, you might be interested in reading our post on how much money you can receive if you prove that you were wrongfully discharged.




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