Wrongful termination: Did your Employer Break the Law?

By: Janice Dantes

 

While employment law is not my area of expertise, I do occasionally receive questions from employees who were terminated and if they have any cause of action against their employer. To begin, it is not illegal for a manager to be a jerk. It is only illegal if you are being treated poorly or were fired because you are a part of a protected class of people. These protected classes include discriminatory actions on the basis of race, gender, age, sexual orientation, and religion. There are also other protections through Whistleblower laws.

If you happen to be the only Filipino person at your job and the only person fired, this does not automatically mean you were fired for being Filipino. Employment cases rely heavily on clear and convincing evidence of discrimination. Below are some important things to know as an employee:

1. Are you part of a union or did you sign an employment contract? If you did neither of these things, the assumption is that you are an “at will” employee. This means you can be fired at any time for cause or no reason at all. Employers can fire “at will” employees for poor performance, tardiness, or just because they did not like the employee. If you are part of a union or you signed an employment contract, you may have additional rights based on the union contract or employment contract.

2. Did you request your employee file? Every employee has the right to request their employee file even after they have been terminated. Be sure before you pursue legal action that you obtain your employee file to know what was documented regarding your performance.

3. What’s your proof? It is not enough to win a wrongful termination action based on how your employer made you feel. There needs to be clear evidence that you were treated differently from other employees similarly situated to you. Are there emails with disparaging remarks against your race, gender, age, etc? Do all your Caucasian co-workers have paid breaks but the Filipinos don’t? Have you filed a complaint about these issues? The one thing that hurts discrimination cases are issues involving less than stellar employees. If it is documented that you are a poor performer, you have yelled at a co-worker, and you are frequently tardy, it is difficult to argue that you were not fired for these other reasons.

4. What do I do if I can’t find an attorney? If you cannot find an attorney, you can file your case yourself with the EEOC. It is free to file and if they feel that there is a case, they can assist you in the process. After your termination, you only have a certain amount of time to file (180 days or 300 days depending on your cause of action). Be mindful of the deadlines.

5. Practical considerations. If you are unhappy at a workplace, find a job somewhere else. Lawsuits are incredibly stressful, time-consuming, and expensive. Rather than suffering in your miserable workplace trying catch your employer’s missteps, find a better place to work and move on. Finally, do not get too comfortable in your job just because you have been there a long time.

If you feel that you might have been wrongfully terminated, please contact me at (312) 546-5077 or janice@pinaylaw.com.

Thank you for reading. Until we meet again, love one another.