- You’ve been Fired. Is it lawful? Unfortunately, the answer is often, “Yes.”
- Can My Employer Require Me To Use My Paid Time Off During My FMLA or CFRA Leave
- The Consequences of Elder Abuse and Neglect Need to be Addressed
- EEOC Unlocks the Vault of Secrecy for Employees
- New California Law Requires Payment of Overtime Wages to Caregivers
Employer Fraud, Defamation, or Whistle Blowing Violations
A large body of federal and state laws protects workers hired and terminated under fraudulent premises. To prove an employer engaged in fraud, an employee must show:
- Employers made false representations
- Superior knew of false misrepresentation
- Employer showed intent to deceive
- Employee accepted and relied on misrepresentation as truth
- Employee suffered damages for reliance on employer misrepresentation
A large amount of evidence and documentation is needed to support these claims, and if found in favor of employees, damage awards are generally very favorable to damaged employees.
Defamation by an employer during or after the firing process may prove grounds for suit by former employees. Essentially, employees filing defamation suits allege an employer’s actions hindered the employees’ ability to obtain future employment. To prove defamation, employees must present the following elements, including:
- Employer made a false statement about an employee
- Employer exposed another party to this false information
- Employer was negligent or purposely in allowing the leak of this false information
- The false information harmed an employee
Whistle blowing retaliation by employers acts as a subset of public policy violations with an important distinction. Employees filing wrongful, false, or ill informed complaints are not protected by whistle blowing law protection in most cases. Each state has their own laws and statutes regarding whistle blower protection, but in many cases, unfounded claimants are not protected from retaliation.
Provisions of Qui Tam Actions
If you possess information that your employer is engaged in defrauding the federal government, you are entitled to file a qui tam action with government. Fraud, or any action to mislead the federal government to save money or make profit, covers virtually any form of action meant to deceive the federal government. In order to promote reporting the illegal activity, the government allows qui tam whistleblowers to collect a percentage of the recovery, which can range from fifteen to thirty percent. Qui tam claims are made under protected seal, which keeps whistleblowers’ names protected for at least sixty days. Following a qui tam claim, the government will investigate and decide whether to continue pursuing the case. If a federal entity decides to represent your claims, qui tam claimants are typically entitled to fifteen to twenty-five percent of the recovery, depending on how involved the claimants were in permitting the fraud to occur in the first place. If the government declines to pursue qui tam actions in conjunction with claimants, a claimant can file a private qui tam suit against their employer.
Rights of Disciplined or Fired Employees
Employees under the at-will doctrine can leave a job without any warning, but as most cases occur, employees consider legal action to retain their right to a job, instead of enforcing their legal right to walk away from a job. Generally, employers have codes and company policies using a progressive warning and reprimand schedule for workers under-performing or not adhering to company standards. In some cases, employers may fire an employee on the spot, however, this is may constitute wrongful termination if accepted company termination policies are not adhered to, unless it is an instance of gross negligence, criminal action during employment, or wanton disregard of reasonable practices of the workplace.
If you have been formally disciplined or fired by your employer, maintain detailed and supported documentation surrounding the circumstances of your warning or termination. Additionally, workers do have the right to request the reason for their warning and termination in some states under laws known as letter of service or letter of understanding protections.
As a terminated employee, you might be concerned about the ability of your former employer to release information about your employment with them to other companies, the public, or private individuals. State laws vary greatly, however, the main points of contention regarding information from former employers include:
- What information can be disclosed
- Who can receive that information
- Can employees receive copies of this information, and in full or only partially
- Are employers protected from liability in leaked information
Many companies maintain records of employees during their tenure with a company. Aside from people wishing to keep this information confidential, there are a number of other reasons for workers to request a copy of their personnel file. For starters, collecting unemployment benefits requires proving past employment and termination of this employment for reasons other than gross misconduct. Likewise, any form of litigation following your employment at a company will require copious amounts of documentation, which includes all the information present in your personnel file. Additionally, any litigation action regarding your past employment will be greatly bolstered through a collection of all the company literature, handbooks, policy manuals, work performance evaluations, and internal memos issued during your tenure, as well as any other written criticisms or other pertinent emails. Keep closely in mind that some information your employer may deem confidential, and if you remove these items from the workplace, your employer may now have grounds to file suit against you. Many times, employees may maintain a journal or some form of chronological folder containing all of these pieces of potential evidence for the future.
Waiving Your Right to File Suit
A common workplace practice for firing employees entails employers offering workers severance packages in excess of what they are legally required if an employee will sign several statements. The statements that employees are requested to sign essentially say an employee waives their right to sue a former employer. This tactic, however, is not prima facie, as employees have successfully argued that such agreements were signed under duress.
Federal Plant Closing Laws
The Worker Adjustment and Retraining Notification, or WARN Act, mandates employers with more than 100 workers on a full-time basis to warn their workers sixty days in advance of closing a workplace facility or undergoing gradually a massive staff reduction lasting at least six months. There is a whole host of exemptions protecting employers from having to offer this advance warning, and additionally, every state has their own individual laws and policies in place to address mass layoffs in their state.
How to Take Legal Action against Former Employers
To accurately determine if legal action against your former employer is the best decision, consider some of the following items:
- What legal principal will you use to challenge your firing
- Can you afford legal action, both financially and time wise
- Will you need the representation of an attorney
- What are the damages you are seeking
- Are these damages worth more than the costs of pursuing legal action