Wrongful Termination: When Is Firing an Employee Illegal?
This guide is general information, not legal advice. Laws differ from state to state and change over time. For advice about your situation, talk to a licensed lawyer in your state.
Losing a job is hard, and it can be even harder if you believe you were treated unfairly. But “unfair” and “illegal” are not always the same thing. This guide explains when a firing may be against the law and what you can do about it.
At-will employment
Most jobs in the United States are “at will.” That means an employer can usually fire an employee at any time, for almost any reason or no reason at all, and the employee can quit at any time. Montana is the main exception: after a probationary period, employers there generally need good cause to fire someone.
At-will employment has important limits, though. An employer cannot fire you for an illegal reason.
Common illegal reasons for firing
Discrimination
Federal law prohibits firing someone because of race, color, religion, sex (including pregnancy, sexual orientation and gender identity), national origin, age (40 and older), disability or genetic information. Many states and cities add more protected categories. Most federal anti-discrimination laws apply to employers with 15 or more employees; the age law applies to employers with 20 or more. State laws often cover smaller employers.
Retaliation
It is illegal to fire someone for exercising legal rights, such as:
- Complaining about discrimination or harassment
- Reporting unsafe working conditions
- Reporting illegal activity (whistleblowing)
- Filing a workers’ compensation claim
- Taking protected family or medical leave
- Asking about or reporting unpaid wages
Retaliation claims are among the most common employment claims, and they can succeed even if the underlying complaint was not proven.
Breach of contract
If you have an employment contract that says you can only be fired for specific reasons, or a union agreement, firing you without following its terms may be a breach of contract. In some states, statements in an employee handbook can also create promises the employer must keep.
Violation of public policy
Many states protect employees who are fired for refusing to break the law, for serving on a jury, for voting, or for serving in the military.
What to do if you think you were wrongfully fired
- Write down what happened while you remember it: dates, names, what was said, and the reason you were given.
- Keep copies of your offer letter, contract, performance reviews, emails and any complaints you made. Only keep documents you are allowed to have; do not take confidential company files.
- Ask for the reason in writing. Some states require employers to provide a reason or a service letter on request.
- Be careful with severance agreements. They often require you to give up your right to sue. Have a lawyer review the agreement before you sign.
- Apply for unemployment benefits. Being fired does not automatically disqualify you.
Deadlines are short
For most federal discrimination claims, you must file a charge with the U.S. Equal Employment Opportunity Commission (EEOC) within 180 days of the firing. That deadline is extended to 300 days in states that have their own fair employment agency. Other claims have different deadlines. Because these deadlines are short, talk to a lawyer soon after you lose your job.
How an employment lawyer can help
An employment lawyer can tell you whether you have a claim, file agency charges on time, negotiate a better severance package and, if needed, file a lawsuit. Many employment lawyers offer a free first consultation, and some work on a contingency fee for wrongful termination cases.
Find a Employment lawyer near you
Browse Employment lawyers on NearLawyers, or choose your state to see lawyers grouped by city. You can also search by legal issue and location from the home page. Searching and contacting lawyers through NearLawyers is free.
