Many people believe their termination was unlawful because it was unfair, but being unfair usually isn’t enough to make it illegal. In Nevada, most employment is “at-will,” meaning that in general an employer can terminate an employee for any reason and an employee can quit for any reason. Wrongful termination typically only occurs if one of the following exceptions applies:
- Contract: if an employer and an employee have signed a written contract, then they must follow its terms. Most employees don’t sign a written contract that includes a specific time period or other terms, but they might be part of a collective bargaining agreement or agree to an oral contract with the employer. Also, the terms of an employee handbook or company practices and policies can create an implied contract regarding the duration of employment or the disciplinary process, if they are not pre-empted by a disclaimer;
- Bad Faith Discharge: in every employment contract is implied a covenant of good faith and fair dealing; an employer can be liable for violating that covenant if it has a special relationship of trust with the employee and if it deliberately countervenes the intention and spirit of the contract;
- Discrimination: employers cannot discriminate against employees in any way based on a protected class, such as race, religion, disability, age, or sex;
- Tortious Discharge in Violation of Public Policy: employers cannot retaliate against employees for taking action that is important to the public, such as:
- Whistleblowing: reporting an employer’s illegal or unsafe practices, such as fraud or health and safety violations, to a government authority; an internal report to the employer alone is not enough–the employee must report the illegal activity to a government agency outside the company;
- Unsafe Conduct: refusing to work under conditions that are unsafe, meaning unreasonably dangerous to the employee;
- Illegal Conduct: refusing to engage in conduct that the employee reasonably believes to be illegal;
- Workers’ Compensation: filing for worker’s compensation;
- Jury Duty: taking time off to fulfill duties of citizenship, such as jury duty.
- Other Retaliation: employers also can’t retaliate when employees engage in other protected activity, such as:
- Taking leave under the FMLA;
- Engaging in protected “concerted activity“;
- Using a legal product off duty;
- Exercising rights under OSHA;
- Filing a complaint involving employment discrimination with the EEOC or NERC;
- Filing a complaint involving wages or hours of work with a government agency or internally;
- Participating in an investigation involving employment discrimination, wages, or hours of work; or
- Serving as a witness in any judicial or administrative proceeding.
There may be other possible exceptions to the general rule of at-will employment, but the ones described above are a fairly comprehensive list.
What if an Employer Is Unfair?
Employers take a lot of action that employees might believe to be unfair or unethical, but if the employer’s actions don’t fit within one of the exceptions above, then it probably isn’t an illegal termination. If a potential case doesn’t fit within one of the exceptions above, then there’s a very slim chance there’s a case.
What if an Employer Makes a False Accusation?
Making a false accusation against an employee that leads to termination might be unfair and unethical, but it probably isn’t an illegal termination. 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.
What Compensation Is Available?
An employee who wins a wrongful termination suit can typically receive monetary compensation for lost wages and benefits. Damages for emotional distress might also be available. In some cases, the employee can be awarded attorney fees and punitive damages.
Contact me today if your employer has terminated you in a way that fits within one of the exceptions described above; otherwise, I won’t be able to help you. If you’re an employer facing a charge of wrongful termination, then contact me for a consultation to see how I can help.
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