Getting fired from a job can be a difficult, demoralizing experience. It can also be harmful to your economic and emotional well-being. It’s not surprising then that you might want to contact an employment attorney for help. Unfortunately, in most cases I can’t do anything to help because what the employer has done might be unfair but it isn’t wrongful termination, meaning an unlawful termination.
So What Is Wrongful Termination?
To explain what an unlawful termination is, it’s easiest to begin by explaining what is lawful. You’ve probably heard that Nevada is an “at-will” state. At-will employment simply means that, in general, your employer can fire you at any time for any reason it wants.
I say “in general” because there are a lot of exceptions to the default rule of at-will employment. However, so long as your employer doesn’t violate one of the exceptions, it hasn’t terminated you illegally. Let’s go through the 12 most common reasons a termination can be unlawful.
What Are the Exceptions to At-Will Employment?
Exception #1: Contracts
Most employees don’t have a contract. You do have a contract if you’re covered by a collective bargaining agreement as a member of a union. Or you might have signed a written individual contract to work on a specific project or for a specific length of time. There could also be an oral contract if your boss said things like “I’ll never fire you unless you really mess up” or “I promise you can keep your job for at least two years.”
The other way to have a contract is if your employer’s handbook or practices and policies establish promises or patterns about how long you can work, what it takes to fire you, or the disciplinary process. If the employer’s handbook contains a disclaimer saying your employment is at-will, or something to that effect, then the disclaimer can prevent you from claiming a contract existed. Outside of the situations described, you probably don’t have a contract. If you do have a contract, then a termination is illegal if your employer doesn’t follow the terms of the contract.
Exception #2: Discrimination
Your employer can’t discriminate against you in any way based on a protected class, such as race, religion, disability, age, or sex. Federal and state laws prohibit this type of discrimination and it’s serious. If your employer discriminates against you based on something else (e.g., your boss doesn’t like your personality), then it might be unfair, but it isn’t unlawful.
Exception #3: Retaliation
Your employer can’t retaliate against you when you do certain things. I’ll list the 10 most common things for which employers cannot retaliate against an employee:
- Whistleblowing: reporting illegal conduct by your employer, like health and safety violations or fraud, to a government authority. Reporting inside the company isn’t enough; you must report it to an agency outside the company;
- Unsafe Conduct: refusing to work under conditions that are unsafe, which means conditions that are unreasonably dangerous to you. Also, employers may not retaliate for reporting unsafe conditions to OSHA;
- Illegal Conduct: refusing to do something your employer wants you to do that is illegal;
- Workers’ Compensation: filing for workers’ compensation;
- Jury Duty: taking time off for jury duty;
- FMLA: taking time off under the Family Medical Leave Act;
- Concerted Activity: taking action to improve your pay and working conditions, whether with a union or without;
- Legal Product: using a legal product off duty, such as alcohol or firearms;
- Complaint: filing a complaint involving employment discrimination with the EEOC or NERC, or a complaint involving wages or hours of work with a government agency or internally;
- Participation: serving as a witness in any legal proceeding or participating in an investigation involving employment discrimination, wages, or hours of work.
If your employer fires you, demotes you, or retaliates against you in some other way after you do one of these 10 things, then you might have a case for wrongful termination. If the retaliation was because of something else, then more than likely you don’t have a case.
What if My Employer Makes a False Accusation Against Me?
Your employer might mistakenly suspect you’ve done something wrong or even blatantly accuse you of doing something wrong knowing you didn’t do it. In most cases, terminating an employee based on a false accusation isn’t unlawful. However, if an employer makes a false statement about an employee to a third party, such as a prospective employer, that damages the employee’s career or reputation, then the false statement can be the basis of employer defamation.
In the end, employers do a lot of things that might truly be unfair, immoral, and unethical, but just because it’s one of those things doesn’t mean it’s necessarily unlawful. If what your employer has done fits within one of the 12 exceptions to at-will employment we’ve discussed, then there’s a chance you do have a case for wrongful termination. Submit a request for a case evaluation to find out. If your case doesn’t fit within one of the exceptions, however, then there’s nothing I can do to help.
If you’re an employer facing a charge of wrongful termination, then contact me for a consultation to see what I can do to help.