Employee’s Rights vs the Various Forms of Wrongful Termination

Employee’s Rights vs the Various Forms of Wrongful Termination

Oct 16

Wrongful termination/discharge/dismissal is one situation wherein the termination of an employee from work violates any of the provisions in the employment law or any of the terms stipulated in the contract of employment. All employees in the US have protective employee rights against wrongful termination. These Employee Rights are based on:

  • Statutory Rights: these are mandated by the state or federal government and require an advance notice of the closure of or a facility or sizeable lay-offs (due to retrenchment), provision of unemployment insurance and protection through anti-retaliation and anti-discrimination laws;
  • Company Policy: states the provision of severance payment in case of company lay-offs; and,
  • Contract Rights: an employee’s individual contract with his/her employers which may be sheltered by a union/collective bargaining agreement.

If, despite these rights, an employee sees foul play in losing his or her job, then the Wrongful Termination Law can be used to determine whether the termination was proper or not. This law also provides possible remedies in cases of wrongful removal from work.

The usual reported causes of wrongful termination include discrimination, retaliation, refusal of employee to perform an illegal act (at the command of the employer), failure of employer to abide by the company’s policies on termination procedures and whistle blowing or complaining.

Besides wrongful termination, there are two other means used by employers to terminate an employee:

  • Constructive dismissal –a voluntary decision (by the employee) to quit from work arrived at due to the unbearable working conditions at the doings of the employer. These conditions may take the form of unconstructive changes in work and/or pay, harassment and/or discrimination.

This voluntary resignation may be legally compared to wrongful discharge; the employee only needs to prove that he/she has quit work due to a breach of contract by the employer. The Employment Rights Act of 1996 states that any employee, who ends his/her employment contract due to the employer’s conduct, may be considered as illegally dismissed.

According to the United States Department of Labor, constructive discharge happens “when a worker’s resignation or retirement may be found not to be voluntary because the employer has created a hostile or intolerable work environment or has applied other forms of pressure or coercion which forced the employee to quit or resign. This often arises when an employer makes significant and severe changes in the terms and conditions of a worker’s employment.”

  • The “Employment at Will” Doctrine – simply means that any employee may be dismissed (even without notice) or can resign from work any time even without valid reason/s. There are circumstances, though, which will render this doctrine not applicable, such as (if the employee is covered by) a contract of employment, a company policy that provides termination procedure and a collective bargaining agreement.

An employee should understand that if ever he/she has been terminated from work and he/she strongly feels and believes that this termination is in violation of his/her rights, then seeking legal assistance is essential. Not only are employment laws complex, but there is also a statute of limitation in filing for a wrongful termination lawsuit plus the need to forward a claim to the Equal Employment Opportunity Commission (EEOC) prior to filing a lawsuit.