In general, there is no such thing as wrongful termination/discipline in most states if you don’t have a contract saying you can only be fired for cause. So why on earth would you ever need an employment lawyer? How do you figure out if you have a case?
Why Do I Need An Employment Lawyer?
There are some times in your employment that you may definitely need an attorney. Here are some reasons you might need a lawyer.
Deadlines: Employment laws are a morass of confusing deadlines, prerequisites to filing suit, and requirements you might miss if you try to do it yourself. If you’re thinking about filing suit, you probably want to speak to a lawyer.
Confusing claims: There are some employment laws on the books that you might not know about, so you might have a case you don’t know about. And there are some laws you think exist, that don’t. If you think you might have claims, if your termination doesn’t feel right or you think something has happened that’s illegal, you might want to run it past a lawyer.
Being taken seriously: Some employers don’t take you seriously unless you have representation.
Uncomfortable in confrontations: If you’re trying to negotiate your own employment agreement or severance package, many people don’t feel comfortable being in a confrontational situation or advocating for themselves. Sometimes it’s better to have an advocate.
When you absolutely, positively need a lawyer
If any of these happen to you, you should contact a lawyer immediately:
Your employer or former lawyer sues or threatens to sue you;
You’re being asked to sign an agreement that you don’t fully understand, especially if it’s a noncompete, confidentiality, arbitration, or employment agreement;
You’ve been accused of a crime (contact a criminal defense lawyer, not an employment lawyer, immediately).
When you might want a lawyer
If you think your employer or former employer has broken employment laws;
If you have been retaliated against for complaining about discrimination or something illegal the employer has done;
If you’re not being paid all the wages you’re owed;
If you think you’re misclassified as exempt from overtime or as an independent contractor.
When you probably don’t need a lawyer
To make a written complaint of discrimination to the human resources department, as long as you follow the policy;
To attend a disciplinary meeting (take good notes, don’t sign anything except a form acknowledging receipt of the discipline, and sign “as to receipt only, rebuttal to follow);
To sign documents you understand, like applications, insurance forms, and tax documents.
To file a union grievance if you’re a union member (use your union rep – they’re free).
Do I Have A Case?
Here is a checklist to help you figure out if you might have a case against your employer. It’s not exhaustive, since every state has different laws, but this will give you a start.
Cases involving termination, demotion, or suspension without pay
If you answer yes to any of these questions, you may have potential claims. You’ll want to contact an employment lawyer in your state to find out if you have a case if any of these occurred shortly before your termination, demotion, suspension without pay or other discipline.
_____ Did you make a worker’s compensation claim shortly before being fired?
_____ Had you recently objected to, refused to participate in, or reported illegal activity or discrimination by the company? (as opposed to something unethical or a violation of company policy)
_____ Had you recently had surgery, revealed the existence of a medical condition, genetic information or pregnancy?
_____ Has the employer made a false statement of fact (as opposed to opinion) about you to someone outside the company, such as a potential employer?
_____ Had you recently performed jury duty?
_____ Had you recently served in the military?
_____ Had you recently taken family or medical leave?
_____ Had you recently served as a witness in a lawsuit or provided testimony or evidence to EEOC?
_____ Had you recently engaged in activity for the benefit of co-workers with respect to terms and conditions of employment?
_____ Did your employer fail to pay you for all hours worked, or fail to pay overtime if you worked over 40 hours per week? Many times, employees are misclassified as exempt and will be owed back wages for up to 2 - 3 years.
It’s not illegal to discriminate against you for being you. If the discrimination or harassment fits in one of the categories below, you should contact an attorney or EEOC to find out more about your rights and your responsibility to report it before you make a claim.
___ Race ___ Sex ___ Sexual harassment ___ Religion ___ Ethnicity ____ Disability ____ Age___ Pregnancy ____ National origin ____ Color (same race) ___ Genetic information ____ Retaliation for objecting to discrimination
Ask yourself how you were treated differently than others of a different race, age, sex, national origin, disability, religion, sexual orientation, or color under the same circumstances. Some states, counties or municipalities have more categories, like marital status and sexual orientation. If you can’t point to someone else who was treated differently under the same circumstances, or to instances where you were singled out for different treatment than others, you may not be able to show discrimination.
Does the employer have 15 or more employees? If not, discrimination laws may well not apply. Some states, counties and municipalities have laws that apply to smaller employers.
Why Isn’t My Case On Your List?
Many people are quite certain that some employer actions are illegal, based on bad TV dramas and misconceptions. Here are some examples of things that aren’t illegal, even though you might assume they are:
No federal law requires employers to offer any work breaks for anything, even meals. Some state laws do require work breaks, but it’s not a majority.
• Hostile environment/harassment
Hostile work environment is not illegal. General harassment is not illegal. Bullying is not illegal. Only hostile environment/harassment due to race, age, sex, disability, or another legally-protected status is illegal.
• Free speech
Only government employees have free speech protections, and those are very limited.
There is no law giving you privacy in your work emails or internet usage. If your employer is going to listen into or record phone calls, there are legal restrictions. You have some privacy rights in your medical information. There is no federal law protecting your social security number, but two states offer limited protection against employers displaying your number.
• Right to work
Right to work doesn’t mean your employer can’t make you sign a non-compete agreement or restrict your ability to work for competitors after you leave. What it means is they can’t make you join a union in order to work there. Some states, but not all, are right to work states. If your company tells you that signing a non-compete agreement is meaningless or that it won’t be enforced, they are lying to you.
There is no law prohibiting an employer from retaliating against you for reporting or objecting to policy violations, lack of professionalism, ethical violations, bullying, or jerkish behavior.
If you think you have claims to make against your employer or former employer, then the best course of action is to contact an employment lawyer in your state to discuss potential claims.
Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.