Labor and Employment

Losing a Job

Wrongful Termination of Employment

Rights and Remedies

Many federal laws protect employees from wrongful termination of employment because of discrimination and retaliation.  For example, Title VII of the Civil Rights Act prohibits an employer with 15 or more employees from firing an employee because of the employee’s race, color, national origin, religion, gender, and sex.  Color discrimination can apply in situations where a person of one skin tone discriminates against a person with a darker or lighter skin tone.  One example of this that has been litigated in court is discrimination within the African-American community.

The Age Discrimination in Employment Act (ADEA) prohibits employers with 20 or more employees from firing an employee based on an employee’s age if the employee is age 40 or older.  An employee may have a claim under the ADEA if the employee is fired or forced to retire and replaced by a younger employee.

The Americans with Disabilities Act (ADA) and the Rehabilitation Act bar discrimination against employees who are disabled.  The ADA bars discrimination by private employers with at least 15 employees, and the Rehabilitation Act applies to all government entities and federal contractors.

Other typically illegal reasons for firing an employee include firing the employee for:

  • Forming a union or being part of a union (National Labor Relations Act)
  • Complaining about or reporting an unsafe conditions (OSHA)
  • Complaining about or reporting illegal activities in the workplace (various whistleblower statutes)
  • Taking qualifying leave under the Family and Medical Leave Act (FMLA)

WHAT TO DO IF YOU WERE FIRED OR YOU FEAR WRONGFUL TERMINATION

You can keep a work journal that records significant employment events such as performance reviews, commendations, any form of disciplinary action, salary changes, and even less formal comments of approval or disapproval.  Always record the date, time, and location, as well as who was present at any such events.  Even if you do not plan to challenge the legality of your firing, you will sometimes need to show that you were fired for reasons that did not involve your own misconduct, and these materials can help immensely.

Always document the circumstances under which you were fired.  This includes who you talked to and what they said, as well as any accompanying conduct by both parties.  It can be helpful to write e-mails to preserve a record and to maintain copies of any relevant e-mails.  It is unlawful to record audio or video conversations without the consent of the required parties as set forth in federal and state wiretapping laws.  Your employer may also have a policy prohibiting audio-recordings of workplace conversations.

Finally, keep any materials that may be relevant such as employment contracts, employee handbooks, performance evaluations, disciplinary actions, memos, orientation materials, and insurance information, but do not take any documents that are designated confidential, private, proprietary, or for internal use only.  Doing so could expose you to a lawsuit against you by your employer for wrongfully obtaining those documents.  This applies to hard-copy documents as well as to e-mails and other electronically-stored documents.

CONTINUED HEALTHCARE COVERAGE

Under the Consolidated Omnibus Budget Reconciliation Act (COBRA), an employee whose employment has been terminated has the right to continue healthcare coverage for up to 18 months under the employer’s insurance plan.  COBRA requires continuation coverage to be offered to covered employees, their spouses (including same-sex spouses), and their dependent children.

Employers may require individuals who elect continuation coverage to pay the full cost of the coverage, plus a 2% administrative charge.  The required payment for COBRA coverage is often more expensive than the amount that active employees are required to pay for group health coverage, since the employer usually pays part of the cost of employees’ coverage.  There may be more affordable or more generous coverage options for you and your family through other group health plan coverage (such as a spouse’s plan), the Health Insurance Marketplace, or Medicaid.

DEDUCT JOB HUNTING EXPENSES AND LEGAL FEES FROM YOUR TAXES

The IRS allows job hunters to deduct certain expenses from their taxes if the taxpayer is seeking employment in the same line of work and the expenses exceed 2 percent of the taxpayer’s adjusted gross income.  Allowable expenses include travel and transportation costs, resume printing and mailing, and fees from employment and outplacement agencies.  Additionally, if you hire a lawyer to assist you with your wrongful termination of employment, you may be able to deduct your legal fees related to doing or keeping your job.  See https://www.irs.gov/uac/job-search-expenses-may-be-deductible.

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