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As an At-Will Employee, Can I Challenge My Illegal Termination?

Many employees incorrectly believe that because they are employed at-will, they cannot challenge their illegal termination.

In fact, federal, state, and local laws provide several legal protections to at-will employees.

What is at-will employment?

At-will employment is the default employment status in most states and the District of Columbia. If you did not enter into an employment contract about the term of your employment or the reasons for which you may be fired, you are employed at-will.

In at-will employment, your employer generally may fire you at any time and for any reason or no reason at all. Importantly, however, your employer may not terminate you for an illegal reason, such as discrimination or retaliation.

Thus, your employer may fire you for a reason you disagree with, so long as the reason is not illegal. For instance, your employer could fire you for being rude to clients or late to work, even if you believe that your conduct does not warrant a termination.

But your employer may not discharge you because of your sex or the color of your skin.

Generally, an at-will employee does not have legal claims against her employer simply because it fired her. However, an at-will termination must comply with a variety of federal, state, and local laws.

If the firing violates any one of those laws, it is illegal, and the employee may challenge it.

Your employer must comply with your employment contract, if you have one.

If you entered into an employment contract, you are not an at-will employee. The terms of your contract govern your employment and control whether, when, and why your employer may fire you. Your contract also determines if you are entitled to severance and how much.

If your employer has violated your employment contract, you may have a legal claim for breach of contract.

For example, your employer may not mischaracterize your separation as a “for-cause” termination instead of a “no-cause” termination to avoid paying you severance. Rather, your employer must abide by all terms and conditions of your employment contract when it discharges you.

You may have a statutory remedy.

If your employer has violated a federal, state, or local statute in discharging you, you may be able to bring legal claims under the statute.

An employer may not discriminate against an at-will employee.

Federal employment anti-discrimination laws prohibit covered employers from firing employees because of a protected trait, such as race, color, religion, sex, national origin, age, or disability. In some instances, state or local laws provide even broader protections. In D.C., the District of Columbia Human Rights Act (“DCHRA”) prohibits discrimination on the basis of eighteen protected traits. If your employer fired you based on a protected trait, you may have a claim for employment discrimination.

An employer may not retaliate against an at-will employee for engaging in protected activity.

Moreover, employers must comply with federal, state, and local anti-retaliation provisions. Such laws outlaw certain employer conduct and expressly prohibit employers from retaliating against employees who report their violations. A wide variety of laws bar employer retaliation. If you suspect that you were terminated because you raised or opposed your employer’s misconduct, we urge you to contact an experienced employment law attorney, who can help determine if your employer’s conduct is illegal.

Examples of statutes that prohibit retaliation.

Many federal, state, and local laws expressly prohibit employer retaliation. This post does not provide an exhaustive list of those anti-retaliation provisions. However, you may have a legal claim against your employer if it has retaliated against you because you opposed its discrimination or retaliation, took protected leave, requested a reasonable accommodation, or raised issues related to financial improprieties or mismanagement.

For example:

  • Title VII of the Civil Rights Act of 1964 and the DCHRA prohibit an employer from retaliating against an employee because she opposed race or sex discrimination.
  • Section 105 of the Family and Medical Leave Act prohibits an employer from retaliating against an employee because she exercised, or attempted to exercise, her right to take leave under the Act.
  • The National Defense Authorization Act applies to federal contractors, subcontractors, grantees, and subgrantees. It prohibits them from retaliating against a worker who reports gross mismanagement, gross waste of federal funds, abuse of authority, or legal violations related to the execution of a federal contract or grant.

Your discharge may violate public policy.

Not every law contains an express anti-retaliation provision. However, that does not mean that your employer may retaliate against you for following the law.

If your employer fired you because you followed the law, refused to violate the law, or exercised your rights under a law, you could have a common-law claim for wrongful discharge.

D.C. recognized a public policy exception to at-will employment in 1991.

The D.C. Court of Appeals first adopted a public policy exception to the at-will employment doctrine in 1991. See Adams v. George W. Cochran & Co., Inc., 597 A.2d 28 (D.C. 1991). In Adams, a company discharged a driver who refused to operate a vehicle without an inspection sticker, as doing so would have violated the D.C. Municipal Regulations.

The D.C. Court of Appeals reasoned that the company could not force the employee to choose between breaking the law and keeping his job. Therefore, the Court carved out an exception to the at-will employment doctrine and held that an employer may not fire an employee because he refuses to violate the law, as contained in a statute or municipal regulation.

D.C. expanded the exception in 1997.

Further, in 1997, the D.C. Court of Appeals expanded the public policy exception. See Carl v. Children’s Hosp., 702 A.2d 159 (D.C. 1997) (en banc). In Carl, a hospital fired a nurse because she testified about matters against the hospital’s interests, both when she testified on behalf of plaintiffs in medical malpractice claims and when she testified before the D.C. Council. The Court held that the hospital could not fire the nurse for exercising her legal right to testify.

How do I prove wrongful discharge?

To make out a claim for wrongful discharge, a former employee must point to a public policy expressly encompassed in a statute, municipal regulation, or the Constitution. Further, the employee must show a close connection between that policy and her wrongful termination. See Clay v. Howard Univ., 128 F. Supp. 3d 22, 27 (D.D.C. 2016); Davis v. Cmty. Alternatives of Washington, D.C., Inc., 74 A.3d 707, 709-10 (D.C. 2013).

In other words, the employee must show that her employer fired her because she refused to violate the policy, insisted on complying with it, or exercised her rights under it. An employee’s wrongful discharge claim will fail if she cites a law that vaguely refers to the public policy at issue in her case.

What damages can I recover in a wrongful discharge claim?

If you have suffered a wrongful discharge, you may be able to recover your lost wages and benefits, compensation for your emotional distress, and in some cases, punitive damages.

How do you know if your employer discharged you for an illegal reason?

To be clear, an employer may fire you for an unfair but legal reason, such as personality conflicts or a mistaken but honest belief that you have performance deficiencies. An illegal termination results only when your employer has fired you for an illegal reason: discrimination, retaliation, your compliance with a law, your refusal to violate a law, or your exercise of a legal right.

Nowadays, most employers do not openly admit that they fired you for an illegal reason. Such direct evidence is rare and unnecessary. Instead, most employers claim that they fired you for a legal reason.

You must establish that the employer’s provided reason is false and pre-textual, and that it really terminated you for an illegal reason.

Look out for these types of evidence.

Most employees rely on indirect evidence—that is, evidence which raises an inference that your employer acted illegally.

While this is not an exhaustive list, the following types of indirect evidence may help establish your employer’s illegal motive.

Evidence of animus: General statements that show the employer dislikes people in your protected class or who engage in the same type of protected activity, even if those statements are not specifically about you.

False and pre-textual explanation: Your employer’s stated reason for your termination is false and pre-textual.

Shifting explanations: Your employer has changed its explanation about why it fired you.

Temporal proximity: Your employer fired you shortly after it learned that you are a member of a protected class or after you engaged in protected activity.

Differential treatment: Your employer treated workers outside of your protected class, or who did not engage in protected activity, more favorably.

“Me too” evidence: Your employer also fired other employees who are members of your protected class, or who engaged in the same type of protected activity.

Policy violations: Your employer committed policy violations in terminating your employment.

Contact us.

If you suspect that your employer illegally terminated your employment and you wish to learn more about your rights, contact us. We have extensive experience fighting illegal terminations and contract violations.

This blog post has been prepared for informational purposes only. This blog post is not intended, and should not be construed, as legal advice. The information contained in this blog post is not intended to create an attorney-client relationship, and the receipt of this information does not constitute attorney-client privileged legal advice.