Construction Law: Wrongful Termination

Follow the Law & You’ll Be Fine

by Gabriel Pinilla, Cotney Attorneys & Consultants

 

 

 

 

 

 

 

 

(Editor’s Note: Gabriel Pinilla is the managing partner of Cotney Attorneys and Consultants’ Denver, Colorado, office. He is a seasoned, results-oriented business and construction law and litigation attorney. Pinilla’s practice encompasses state and federal court litigation from pre-trial through the appeals process, as well as serving clients with negotiation and transactional needs. For more information, go to www.cotneycl.com.)

 

If you have ever had to lay off or fire an employee, you know how challenging the situation can be. Both sides may voice accusations, and emotions can run high. However, if you follow the law and your own policies, the matter should be over fairly quickly, and everyone can move on. However, there may be times when employees feel they have been treated unjustly, and they choose to file a wrongful termination claim. In that case, here are critical facts that both you and your employees should understand.

 

Unfair Is Not Necessarily Wrongful

Employees may mistakenly believe that if their termination was unfair or unreasonable, it was wrongful, which is not the case. Wrongful termination is a legal term that refers to termination of an employee in a manner that violates established law or contract obligations. Examples include the employer violating state or federal anti-discrimination laws, labor laws, and employment contracts. Wrongful termination claims can also be valid if they result from retaliation for workers’ compensation claims, whistleblower actions, or sexual harassment claims.

 

At-Will Employment

Almost 75% of workers in the United States have at-will employment. This term means that their employer can fire them for any legal reason without warning, and without cause. To employees, this arrangement may seem unfair or unreasonable, but it is certainly legal. Almost all states allow at-will employment, but there are exceptions. Employees in the public sector, union workers, and workers with contracts are not usually subject to at-will employment.

 

When a Claim Is Justified

Whether a company operates in the public or private sector or in an at-will state or not, certain situations more readily justify a wrongful termination claim. Examples include: an employment contract requires a cause for termination, and the employer does not provide one; an employee is fired after reporting illegal activities at the workplace based on the employer seeking to punish the employee for making the report; an employee is terminated for filing a sexual harassment claim or a workers’ compensation claim; an employer is discriminatory in firing an employee, such as for reasons based on the employee’s race, gender, sexual orientation, age, religion, medical condition, disability, or other protected status.

It is important to note that employees who choose to resign can still file a wrongful termination claim. For example, if an employee can demonstrate that their work environments were so hostile or dangerous that they had no alternative but to leave their positions, this is considered equivalent to being fired. The legal concept falls under the term constructive termination.

 

Understanding Both Sides

Maintain regular and consistent disciplinary/employee performance documentation. If you are considering terminating an employee for performance problems, put that in writing somewhere with a date stamp, document it in the employee file, etc. This can mitigate against a presumption of wrongful termination that is based simply on the fact that it occurred close in time to a discrimination or workers compensation claim. This type of recordkeeping can also support a termination for cause under an employment contract.

If you find yourself facing a wrongful termination administrative proceeding or lawsuit, remember that the employee must offer proof to justify the claims. Before you decide to either settle or take the case to court, be sure to consult legal counsel. An experienced employment law attorney can review the details of the claim and help you determine the wisest course of action.