Assuming you do not have an employment contract, you can only claim wrongful termination if the firing was motivated by certain unlawful reasons. Unlawful reasons include discrimination based on sex or gender – this includes sexual harassment and pregnancy – as well as race, religion, nationality and disability. In certain places and in certain situations, sexual orientation discrimination can also be unlawful. Disability in this context will often mean any serious or chronic health condition you have. Disability discrimination can also mean that you are taking care of someone with a disability.
You also cannot be discriminated against by your employer for certain activities on the job. This is commonly referred to as retaliation. One of these activities is taking extended leave under the Family and Medical Leave Act (FMLA) for your own or for a loved one’s medical condition. Other common protected activities include opposing unlawful discrimination; filing a safety complaint; filing a workers’ compensation complaint; complaining of pay practices; or complaining about other illegal activities. If you are a government employee, you might also have some claims based on constitutional law.
Employee rights in the workplace took a step backward with the Vance and Nassar decisions made by the U.S. Supreme Court. So what does this mean in concrete terms for employees?
Vance: The main takeaway from Vance is that employees must tell upper management and human resources about workplace harassment. This has been federal law in the Court of Appeals for the 1st Circuit (Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island) and the 8th Circuit (Nebraska, Iowa, North Dakota, South Dakota, Minnesota, Missouri and Arkansas). In order to sustain a workplace harassment claim under federal law, employees must now be able to show that management knew about harassment and that management failed to take effective action against the harassment.
Nassar: Nassar made it more difficult to prove retaliation under federal law. In the 5-4 majority decision written by Justice Samuel Alito, the court wrote that it was concerned about the increase in retaliation claims filed in the EEOC and the potential for “frivolous litigation.” The effect of this case is that even more retaliation cases will be decided by judges under summary judgment instead of being decided by juries.
However, just because it is harder to bring a discrimination or retaliation case under federal law doesn’t mean that an employee can’t bring a case under state law that could be more favorable to the employee. But employees pursuing wrongful termination cases in state court should be aware that state court judges oftentimes follow federal court judges in interpreting state fair-employment laws. State court judges might find the Supreme Court’s concerns about “frivolous” retaliation suits to be well founded.
I think Justice Alito was off base in his concerns about “frivolous” retaliation where employees who are about to get fired file complaints in order to preserve their job or set themselves up for a wrongful termination lawsuit. Any competent employee-rights attorney knows that retaliation suits are difficult to win. I turn down about 9 out of 10 people who call my office who claim they were wrongfully terminated. Wrongful termination suits are costly and time consuming. I am not going to invest time and money in a suit where I will likely get dismissed and possibly face financial sanctions under court rules and also possibly be opened up to paying costs to the prevailing employer under federal fair-employment law. I am doubly suspicious of employees who are fired shortly after they file discrimination or other claims. Employers know that if they fire someone after filing some sort of complaint that it appears to look bad. But courts will uphold that reason if they had a legitimate reason to fire the employee. In other words, the employee who knows they are skating on thin ice and then files a complaint is going to lose a wrongful termination case. The decision in Nassar won’t stop disgruntled employees from filing claims with fair-employment agencies, it will just make it more difficult for employees with legitimate wrongful termination claims to obtain justice.
Clients of Rehm, Bennett & Moore helped make a positive difference this legislative session. They are parents who lose their children as a result of work injuries.
Albert and Diane DeLeon of Grand Island persuaded their state Sen. Mike Gloor to introduce a bill that was signed into law that increased the funeral benefit from $6,000 to $10,000. This was after they lost their son Emilio in a construction accident. In addition, Gene Cary testified in favor of a similar bill that would have raised the funeral benefit for the families of dead workers as well as giving a $25,000 death benefit to parents who have had a child killed in a work accident. Gene’s son Neil was killed in a work accident in 2010. The bill awarding an automatic death benefit to parents who have their child killed in a work accident failed to advance out of committee. Bills held in committee are killed for this session of the legislature and must be re-introduced next session. However, the combined stories of Cary and the DeLeons helped to advance the cause of parents who lose a child in a work accident.
Besides the bill increasing funeral benefits for parents who lose their children in work accidents, the only other bill to pass that affected injured workers was a bill that gave employers protections for information given in employment references.
Besides the bill increasing funeral benefits for parents who lose their children in work accidents, the only other bill to pass that affected injured workers was a bill that gave employers protections for information given in employment references. As the bill was originally introduced by Sen. Charlie Janssen of Fremont, the bill would have given employers almost free reign to Continue reading →
Deposition can be tough, but it is also a chance to make things much tougher on your former employer.
In a post earlier this week, I shared some of the legal procedures that can make wrongful termination cases stressful for clients. Today I’ll share some ways that wrongfully terminated clients can work with their lawyers to make their cases as strong as possible.
The early stages of the case are essential for setting a foundation for ultimate success. You have an important role to play in both the written discovery and deposition phases of your case.
Filing the Lawsuit and Written Discovery
In Nebraska, a wrongful termination lawsuit officially starts when your attorney files a written complaint with the court and it is served on your former employer. I work with my clients to make this written complaint as detailed as possible. I do this is because this complaint frames the next stage of the case, written discovery. By working closely with you when filing the written complaint, I’ll have a much better sense of how your employer will attempt to defend the case.
If your employer denies specific facts in the written complaint, then in the written discovery phase I’ll ask your employer for facts and documents to support their denial.
Deposing the Employer’s Witnesses
As an attorney, it is my job to expertly assess a witness’s words, body language and facial expressions, Continue reading →
Work with your lawyer to make things tough on your former employer.
Being fired from a job is one of life’s most difficult events. If you feel like you’ve been wrongfully terminated, one option is to sue your former employer. Bringing a wrongful termination lawsuit can right a wrong, but it can also bring back painful memories.
In this two part series, I’ll give you an inside look into some of the legal procedures that could make a wrongful termination case stressful for clients and ways that wrongfully terminated people can work with their lawyers to make their case against their former employers as strong as possible.
Once a lawsuit is filed, your lawyer and your employer’s lawyer will start a process called discovery. Discovery usually begins by serving written questions and requests for documents on the parties to the lawsuit. While answering these questions and gathering documents can be time consuming, it is often key to establishing the case against a former employer.
This time period, while stressful, is an opportunity to work together with your lawyer to build a strong foundation for your case, and to make things extremely tough on your former employer.
Discovery is followed by an on-the-record interview called a deposition. In a deposition, your former employer’s attorney will ask you questions about your case, often for several hours straight. This session is usually videotaped. You will probably be asked about your written answers to questions and about the documents you produced in discovery. You are also likely to be asked questions about documents from your personnel file. Your lawyer will