Cecily Zamora
Suing an employer is a tricky situation that can have many complexities. In the US, most employees are considered \at-will\, meaning they can be terminated for any reason, except for factors such as race, religion, and national origin. This means that employees can be fired for threatening to sue their employer. However, it is illegal to be fired for charging an employer with wrongful termination under the guise of discrimination or other reasons protected under the law. Many laws that allow employees to sue their employers also protect them from retaliation, and employees can file a lawsuit or legal complaint depending on the nature of the claim.
Can I be fired for a lawsuit?
| Characteristics | Values |
|---|---|
| Can I be fired for threatening to sue my employer? | Yes |
| Can I be fired for suing my employer? | Yes |
| Can I be fired for filing a lawsuit against my employer? | No, but they can avoid liability by insisting on a lawful reason for firing you |
| Can I be fired for complaining or reporting sexual harassment? | No |
| Can I be fired for complaining about wage or hour violations? | No |
| Can I be fired for suing my employer while still working for them? | Yes, but the outcome of the lawsuit has no bearing on whether your employer can terminate you |
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What You'll Learn
Wrongful termination
Additionally, wrongful termination may be claimed if the employer's reasons for terminating the employee violate state public policy. For example, an employee may be able to claim wrongful termination if they are fired for refusing to take an illegal action or for reporting a violation of the law to an enforcement agency. Discrimination is also a leading ground for claiming wrongful termination, as employers cannot terminate employment based on an employee's race, nationality, religion, sex, age, or sexual orientation (in some jurisdictions).
If you believe you have been wrongfully terminated, you may have several options for recourse. You can file a report with the Equal Employment Opportunity Commission (EEOC) if you believe you were fired due to discrimination. If you were fired in retaliation for reporting unsafe or illegal work practices, you are protected as a whistleblower and can report your termination to the Occupational Safety and Health Administration (OSHA). Additionally, you may want to consult with a wrongful termination attorney to discuss your specific situation and explore potential legal options.
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Retaliation lawsuits
In the United States, employers are generally allowed to fire at-will employees for any reason. However, they cannot legally fire employees in retaliation for filing many types of lawsuits. Retaliation lawsuits are the most common issue alleged by federal employees and the most common discrimination finding in federal sector cases.
Retaliation occurs when an employer fires or takes any other adverse action against an employee for engaging in protected activity. An adverse action is one that would discourage a reasonable employee from raising a concern about a possible violation or engaging in other related protected activities. Protected activities include inquiring about pay, hours of work, or other rights, and filing a complaint of discrimination or participating in a discrimination proceeding. The same laws that prohibit discrimination based on race, colour, sex, religion, national origin, age, disability, and genetic information also prohibit retaliation against individuals who oppose unlawful discrimination or participate in an employment discrimination proceeding.
If an employer does retaliate, the employee can add another claim to their lawsuit and gather evidence to support that additional claim. However, an employer can avoid liability in a retaliation lawsuit by insisting that the employee was fired or punished for a lawful reason, such as poor performance.
To prevent retaliation, EEO practitioners must work with managers to ensure that retaliation is not permitted in the workplace. This includes examining the behaviour after an allegation has been made and ensuring that managers' actions do not deter employees from opposing discrimination or participating in the EEOC complaint process.
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Discrimination
In the United States, the Equal Employment Opportunity Commission (EEOC) enforces laws that specifically protect individuals in the workplace from discrimination. Before filing a job discrimination lawsuit against your employer, you must first file a Charge of Discrimination with the EEOC or a Fair Employment Practices Agency (FEPA). You can file this charge through the EEOC's Public Portal, which will help determine whether the EEOC is the appropriate federal agency to handle your complaint. You may also bring your lawyer to the meeting, although it is not required. It is always helpful to bring any information or papers that will support your case, such as letters, notices, performance evaluations, and contact information for witnesses.
It is important to note that your employer cannot legally retaliate against you for filing a discrimination lawsuit. This means that you are protected from being written up, fired, or otherwise punished for filing a claim. However, your employer can avoid liability in a retaliation lawsuit by insisting that you were fired or punished for a lawful reason, such as poor performance. Therefore, it is crucial to gather evidence of your employer's illegal behavior and seek legal advice from an experienced employment lawyer to protect your rights.
Additionally, keep in mind that the laws and procedures for filing a discrimination complaint may vary depending on your location and the nature of your employer (private, public, or federal). For example, federal employees and applicants have a different complaint process, and some states and local jurisdictions have their own anti-discrimination laws and agencies. As laws and precedents are subject to change, it is always recommended to consult with a law firm to get the most current information and guidance on your specific situation.
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Sexual harassment
If you have been sexually harassed at work, it is important to report it to your employer and follow their reporting procedures. Your employer is responsible for protecting you from further harassment and from retaliation for making a complaint. They must take prompt action to stop the behaviour, investigate the incident(s), and ensure it does not happen again. This action must be appropriate and effective, without causing you further harm or allowing you to become a target of retaliation. If your employer fails to take appropriate action or retaliates against you, you may have grounds for a lawsuit against them.
If you decide to file a lawsuit for sexual harassment, you may be able to recover damages for a variety of losses, including lost wages, medical expenses, emotional distress, and pain and suffering. You may also be entitled to punitive damages, which are intended to punish the at-fault party for their actions. Under federal law, you can only sue the employer in a sexual harassment case, but state laws may have different limits than federal law, so you may be able to recover more in damages if you file a state claim. If you lost your job or had to quit because of sexual harassment, you may have the right to return to your former position (this is called "reinstatement") or be eligible for an award of front pay instead.
It is important to note that suing for sexual harassment can be expensive, as you may need to pay for legal fees and other expenses. Some lawyers work on a contingency basis, meaning they only get paid if you win your case. It is recommended that you consult with a lawyer as soon as possible, as there are strict time limits for filing a sexual harassment lawsuit.
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Wage and hour law violations
In the United States, employers usually have the right to fire at-will employees for any reason. However, they cannot legally fire employees in retaliation for filing lawsuits against them. This means that if an employee files a lawsuit against their employer, they cannot be fired for that reason. If an employer does retaliate, the employee can add another claim to their lawsuit and gather evidence to support that claim.
To ensure compliance with wage and hour laws, employers should consult both federal and state laws. The federal Fair Labor Standards Act (FLSA) sets requirements for minimum wage, overtime pay, and overtime eligibility, with some exemptions. State laws often regulate the timing of wage payments, requiring payment within a certain time frame, and payment of earned wages may be due immediately upon involuntary termination.
Employees who believe their wage and hour rights have been violated can take several actions. They can file a wage claim with the appropriate state agency, such as the California Employment Development Department (EDD) using Form DE 1870. They can also file a private lawsuit to recover unpaid wages, overtime pay, and liquidated damages. Additionally, the Secretary of Labor may bring a lawsuit on behalf of employees to recover wages and seek penalties for violations.
It is important to note that employees may not bring a lawsuit if they have already been compensated through other means, such as through the Wage and Hour Division's supervision or if the Secretary of Labor has already filed a lawsuit. Employees should also be aware of any statutes of limitations that may apply to their claims.
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Frequently asked questions
In most U.S. states, employees are considered at-will, meaning that they can be terminated for any reason that isn't illegal. However, if you are suing for wrongful termination under the guise of discrimination or other reasons protected under the law, it is illegal to be fired in retaliation.
Yes, unless your employment contract specifically precludes them from firing you for threatening legal action.
No, it is illegal to be fired for reporting sexual harassment.
Yes, but the outcome of the lawsuit has no bearing on whether or not your former employer can terminate you. If they do, it could give you grounds to pursue a wrongful termination lawsuit.
It is recommended that you speak to an attorney as soon as possible to discuss your best options for protecting yourself against unlawful employer behaviour. You should also begin to gather evidence immediately, as this will be crucial to the success of your case.
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