Wrongful Termination

Contrary to popular perception, an employer usually does not need to show just cause, or that an employee is performing badly or has violated a workplace rule, in order to terminate an employee. Only where the workplace is governed by a collective bargaining agreement or the employer is a public entity is the employer required to make a just cause showing before terminating an employee. Other private employees are employed at will, meaning that the employer may fire the employee at any time, for any reason or no reason at all, as long as the reason is not illegal. An illegal reason would be, for example, a reason that violates federal or state anti-discrimination laws.

Despite the presumption of employment at will, an employee may be able to state a claim for wrongful termination if he or she can show that his or her firing violated an employer promise, jeopardized a clear public policy or, in a few states, did not comport with the doctrine of good faith and fair dealing in employment contracts.

An employer promise not to dismiss an employee may be found in a written employment contract or may be implied from workplace materials like an employee handbook or a policy that has been distributed to all employees. For example, an employee contract may provide that the employer will give the employee at least thirty days' notice before firing him or her, or will only fire the employee for just cause. Similarly, an employee handbook or employer policy may state that the employer will use a three-step disciplinary system, starting with an oral warning, then a written warning or probation, before finally the employer fires an employee for misconduct. If the employer fires the employee without complying with these terms, the employee may be able to sue for wrongful termination, although the suit would more commonly be termed an action for breach of contract.

In order to show that his or her firing violated public policy, the employee must typically show that:

  • there is a clear public policy, as shown by a state or federal statute or by a common-law doctrine, which the employee's conduct supported
  • to allow an employer to dismiss employees for such conduct would undermine this public policy
  • the employee's dismissal was motivated by conduct related to the public policy
  • the employer has no overriding business justification for the dismissal

A classic example of wrongful termination in violation of public policy is the dismissal of an employee who has refused to do something illegal in the workplace, such as discriminate against women or minority group members, or violate an environmental protection statute.

The implied covenant of good faith and fair dealing is an unwritten term that is traditionally applied to contracts and requires that the parties to a contract act in good faith toward one another. The covenant prevents one party to a contract from breaking off the contract in a manner calculated to damage the other party unduly. Because most states presume that employment is at will, however, they do not require an employer to comply with any good-faith requirement when firing an employee. An employee may be able to show a violation of the covenant, however, where he or she has a written employment contract that limits the employer's ability to fire the employee and where the employer has violated the contract, or where the employer has engaged in some misbehavior beyond simply firing the employee without a good reason or notice.

Meeting with Your Employment Law Attorney

To read and print out a copy of the checklist, please follow the link below.

Meeting with Your Employment Law Attorney

You can download a free copy of Adobe Acrobat Reader here

Copyright © 2008 FindLaw, a Thomson Reuters business

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

Back to Main