Anaya Nolan
In most states, it is illegal to fire an employee for following the law. This is known as wrongful termination, which occurs when an employee is fired in violation of the law, such as for discriminatory reasons, in retaliation for reporting a safety violation, or in breach of an employment contract. For example, it is illegal to terminate an employee based on their disability, race, religion, colour, sexual orientation, gender, national origin, age, pregnancy, or genetic information. Employees are also legally protected from being fired for refusing to commit an illegal act, such as refusing to falsify insurance claims or lie to government auditors. If an employee believes they have been wrongfully terminated, they can file a claim or lawsuit against their employer seeking compensation for lost wages, benefits, and other damages.
Can I be fired for following the law?
| Characteristics | Values |
|---|---|
| Discrimination based on | Race, colour, national origin, gender, religion, age, disability, pregnancy, genetic information, sexual orientation, gender identity |
| Other protected activities | Filing a complaint with the Equal Employment Opportunity Commission, formally complaining to your employer about harassment or discrimination, reporting a safety violation |
| Termination in violation of public policy | Terminating an employee for refusing to commit an illegal act, complaining about an employer's illegal conduct, taking advantage of a legal remedy or exercising a legal right |
| Termination in breach of contract | Reasons contrary to what is dictated in their contract, without "good cause" |
| Termination for requesting employment leave | Requesting employment leave protected by laws such as the Family and Medical Leave Act (FMLA) |
| Termination for refusing to be complicit in criminal activity | Refusing to violate criminal environmental laws, refusing to sign falsified insurance forms or federal administrative forms |
| Termination for other reasons | Poor performance, incompetence, insubordination, poor attendance, criminal behaviour, harassment, physical violence |
| Rights upon termination | Receiving unemployment insurance, receiving all wages due, collecting unemployment benefits |
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What You'll Learn
Discrimination and protected characteristics
Discrimination is a significant factor in wrongful termination. Wrongful termination occurs when an employee is fired illegally, such as for discriminatory reasons or in retaliation for reporting a safety violation. Federal and state laws make it illegal to discriminate against and terminate an employee based on a protected category. These protected characteristics include:
- Race or colour
- Religion
- National origin
- Sex (including pregnancy, sexual orientation, and gender identity)
- Age (over 40)
- Disability
- Genetic information (including family medical history)
- Ethnicity
Additionally, some states have laws that further prohibit discrimination based on sexual orientation or marital status.
It is also illegal to fire an employee for any reason that violates public policy, such as for refusing to commit an illegal act or reporting a violation. This includes firing an employee for requesting legally protected leave, such as that protected by the Family and Medical Leave Act (FMLA).
If an employee believes they have been wrongfully terminated, they can take legal action by filing a claim or lawsuit against their employer. However, there are strict time limits and rules that apply to discrimination claims. For example, it is often necessary to file a complaint with a state or federal agency before suing an employer in court.
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Retaliation and protected activities
In the United States, it is illegal to fire an employee for following the law. Such an act is considered wrongful termination, which occurs when an employee is fired in violation of the law, such as for discriminatory reasons or in retaliation for reporting a safety violation, or in breach of an employment contract.
Retaliation for protected Equal Employment Opportunity (EEO) activity is unlawful. The U.S. Department of Labor defines "protected individuals" as those who have requested accommodations, opposed unlawful practices, or participated in proceedings related to employment discrimination based on race, colour, national origin, religion or religious creed, physical or mental disability, genetic information, sex, age, and parental status. Individuals with a close association with someone who has engaged in such protected activity are also considered covered individuals.
Federal laws, such as the Occupational Safety and Health Act (OSHA), make it illegal for employers to fire employees for complaining that work conditions do not meet state or federal health and safety rules. Most states also prohibit employers from firing an employee in violation of public policy, i.e., for reasons that most people would find morally or ethically wrong. For example, it is illegal to terminate an employee for refusing to be complicit in breaking a law or reporting a violation of the law.
Employees are protected from retaliation when they participate in a complaint process or act to oppose discrimination, as long as they are acting on a reasonable belief that something in the workplace may violate EEO laws. However, employers are free to discipline or terminate workers if motivated by non-retaliatory and non-discriminatory reasons. To prove retaliation, the employee must show that they were engaged in a legally protected activity, such as filing a complaint with the Equal Employment Opportunity Commission or formally complaining to their employer about harassment or discrimination.
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Employment contract terms
An employment contract is an agreement between an employer and employee that sets out the terms and conditions of employment. These terms and conditions can be agreed upon in writing or verbally. It is important to note that an employment contract is different from a written statement of employment particulars, which is a document that includes the main terms of employment, such as pay and working hours.
While the specific laws and regulations vary across different states and countries, there are some general principles regarding employment contract terms that are widely applicable. Firstly, it is essential to understand that an employment contract must comply with the relevant laws and regulations. For example, an employer cannot include a term that violates the minimum wage law by stating a wage lower than the legal minimum. Similarly, it is illegal to include pay secrecy terms in employment contracts.
Another important aspect of employment contract terms is the inclusion of restrictive covenants, which are terms that restrict an employee from taking certain actions that compete with the employer's business. This could include non-compete clauses, which prevent the employee from working for a competitor during or after their employment. However, restrictive covenants must be clear, specific, and time-restricted to be enforceable.
In addition to the terms outlined above, there are other common types of terms found in employment contracts. These include:
- Exclusivity clauses: These clauses prohibit employees from working for another employer while they are still employed with their current company.
- Statutory terms: These are terms that arise from employment law, such as an employee's entitlement to statutory redundancy pay if they meet certain criteria.
- Custom and practice terms: These terms are often unwritten and become part of the employment contract when they are generally well-known and established within the business or industry over a long period.
- Implied terms: These are terms that are considered obvious and mutually agreed upon, even if they are not explicitly written in the contract. For example, standards of behaviour expected from employees, such as being polite when dealing with customers.
It is worth noting that wrongful termination, or termination in violation of the law, can occur when an employee is fired contrary to the terms of their employment contract. This includes situations where an employee is terminated for following the law, such as refusing to engage in illegal activities or reporting safety violations. Therefore, understanding the terms of one's employment contract is crucial to protect oneself from unlawful termination.
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Criminal activity and complicity
In most states, it is illegal to fire an employee because of their criminal activity. However, criminal activity and complicity are two different things in this context. Criminal activity refers to the illegal actions of an individual, whereas complicity refers to the involvement of an accomplice or partner in a crime.
An employer cannot legally terminate an employee for refusing to be complicit in breaking the law or reporting a violation. This is considered wrongful termination and is a violation of public policy, which is illegal in most states. Employees who believe they have been wrongfully terminated can file a claim or lawsuit against their employer seeking compensation for lost wages, benefits, and other damages.
To prove wrongful termination, employees must show that their employer's actions had adverse consequences for them, such as being fired, denied a promotion, or given an unwarranted negative performance review. It is important to note that the legal process for a wrongful termination claim can be complex and may involve proving the employer's intent or establishing a violation of the law.
Complicity, in criminal law, refers to the participation of an accomplice who aids or encourages other perpetrators of a crime and shares the intent to complete the criminal act. The mental element of intention, as clarified by Professor Baker and upheld by the Supreme Court in R v Jogee (2016), is crucial in establishing complicity. This modern approach abandons the traditional distinction between "principal" and "accessory" perpetrators, focusing instead on the shared criminal intent of the parties involved.
In summary, while criminal activity can be a legal reason for termination, complicity is a more complex issue. Employers must ensure they are not terminating employees for refusing to engage in or report illegal activities, as this would constitute wrongful termination. Employees who believe they have been wrongfully terminated due to their refusal to be complicit in criminal activities can seek legal recourse, but they must be prepared to navigate a potentially complex legal process.
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Public policy and morality
When it comes to public policy and morality, there are several considerations. Firstly, public officials have a duty to advise the government on moral hazards and provide considered, honest, and impartial advice. This was evident in Australia's refugee policy, where public officials had to balance border management with the country's fundamental obligations to both refugees and its citizens. Similarly, the Australian Defence Force's (ADF) Rules of Engagement (ROE) must consider the moral dimension, especially when providing aid to civil power, as seen in the challenging situation of turning back refugee boats.
In the context of employment, wrongful termination can occur when an employee is fired in violation of the law, including discriminatory reasons or retaliation for reporting a safety violation. It is illegal to violate public policy when firing an employee, and certain protected activities, such as filing a complaint or reporting a violation, cannot be used as grounds for termination. For example, it is unlawful to terminate an employee for refusing to break the law or reporting an employer for doing so.
The intersection of public policy and morality can also be observed in drug legislation, abortion, and AIDS health policy. While public views on acceptable behaviour generally move towards wider tolerance, shifts towards intolerance are often characterized by moral panics. For instance, the English Puritans' shutting down of theatres after Shakespeare's death illustrates how public morality can influence policy and even suppress artistic expression.
In summary, public policy and morality are interconnected, with public morality influencing policy decisions and shaping societal norms. Public officials and policymakers must navigate complex ethical considerations, especially when facing moral uncertainty or potential conflicts between law and morality. Ultimately, the tension between ends and means in the execution of government decisions underscores the dynamic relationship between public policy and morality.
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Frequently asked questions
No, it is illegal to fire an employee for following the law. If you believe you have been fired for following the law, you may be able to file a claim or lawsuit against your employer for wrongful termination.
Wrongful termination occurs when an employee is fired in violation of the law, such as for discriminatory reasons or in retaliation for reporting a safety violation, or in breach of an employment contract.
Some examples of wrongful termination include firing an employee for their race, gender, national origin, disability, religion, sexual orientation, age, pregnancy status, or genetic information. It is also illegal to fire an employee for refusing to be complicit in breaking a law or reporting a violation of the law.
If you believe you have been wrongfully terminated, you should speak to a lawyer right away. You may be able to file a claim or lawsuit against your employer seeking compensation for lost wages, benefits, and other damages.
Yes, it is important to note that while it is illegal to fire someone for discriminatory or retaliatory reasons, most employees in the United States work "at-will," which means they can be fired at any time, for any other reason. However, even in at-will employment, there are still some protected reasons that cannot be the basis for termination.
