You’ve been fired from your job. You don’t think it’s fair. Do you have any legal rights?
As the saying goes, there’s good news and there’s bad news.
- Let’s start with the bad news. In the United States, most jobs in the private sector are considered “At-Will Employment.” This means employers can hire and fire “at will,” unless some exception applies.
- The good news is that there are many exceptions to At-Will Employment.
This set of Frequently Asked Questions will help you understand At-Will Employment, and the most common exceptions to At-Will Employment.
What Is “At-Will” Employment?
“At-will” employment means when employees can be hired or fired at the “will” of the employer. In “At-Will” employment, the employer can run her own business as she sees fit. She can hire whomever she wants. She can fire people whenever she wants. The employer can fire for good reasons or bad reasons, fair reasons or unfair, no matter whether she’s right or wrong.
If At-Will employment applies: the employer can be unfair, unpredictable, inconsistent, and just plain wrong. If that’s how she wants to run her business, it’s her business. She can fire George today for no reason except to hire her cousin Susie who needs a job. Then tomorrow she can fire Susie because she doesn’t like her blouse. She can give Dwayne a raise because she likes him, and cut Stephanie’s pay because she doesn’t like her. If At-Will employment applies then the government and the legal system will not tell the employer how to run her business. The employer can hire, fire, promote, demote, transfer or ignore “at will.”
Fortunately, there are a lot of exceptions to At-Will employment.
What are the Most Common Exceptions to At-Will Employment?
Here’s a short list of exceptions. We’re going to cover each of these in more detail. If you think any of these apply to you, then read those Questions in detail.
- Personal Contract
- Union Contract
- “Public Sector” Employment
- Illegal Discrimination
- Safety Complaints
- Firings that Violate Public Policy
Exception 1: What Does a “Personal Contract” Mean?
Some people in the world have a contract with their employer. Employment contracts normally define their job, and how much they get paid, and how long the job will last. The contract might also spell out grounds for firing, or procedures to be followed for firing or layoff. A contract doesn’t have to be in writing. But if it isn’t in writing, it’s very hard to prove that there actually was a contract agreement.
Very high-paid people have Personal Contracts. People like professional athletes and coaches, famous dancers and musical artists, or high-level executives at big corporations. But truthfully, most of the rest of us ordinary folk don’t.
What About the Company’s Personnel Handbook? Can’t That Be A “Contract”?
Yes, it is possible for an “employee handbook” or “personnel manual” to be a binding contract. But it’s not likely. A 1991 West Virginia Supreme Court case said two things to make this clear. First, West Virginia law presumes that employment is At-Will, unless clearly shown otherwise. Second, West Virginia law says that any wording in the handbook or manual that says the job is At-Will is enough to make it At-Will.
Most employers will make sure that their written policies cannot be understood as a contract. Your employee handbook may sound like a contract. The handbook may have wording that feels like a promise. But in most handbooks you will find the familiar language saying that you are an “at-will employee.” The handbook often also will say the handbook is not a binding employment contract. This wording is there to protect the employer, not you. The wording is to show that the employer does not intend for the handbook to be a contract.
If you have specifically signed an employment contract, then your contract may give you some form of protection. If your handbook does NOT say that you are an at-will employee, then it may be a contract that gives you some protection. If so, you need to read the document very carefully. What guarantee does it gives you? What exactly does it say? Is it a “promise” or only a possibility? Are there conditions you have to meet IN ORDER TO GET the protection?
Exception 2: Does Being a Union Member Offer Protection?
In most cases, the answer is yes. The union’s “collective bargaining agreement” is a contract that protects all the employees it covers. Then the real question is whether the union contract says something that protects you against your particular firing, demotion, or other discipline.
Union contracts usually describe job positions, rates of pay, procedures for hiring or firing, and procedures for employee discipline when company rules are broken. If you are covered by a union contract, you need to read the document carefully. Like any other contract, figure out exactly what it says and means. What guarantee does it gives you? What exactly does it say? Is it a “promise” or only a possibility? Are there conditions you have to meet IN ORDER TO GET the protection?
Employers are not allowed to punish employees who vote to unionize. As long as union activities are not conducted during work hours, employers cannot punish employees who take part in union activities. This protection comes from the National Labor Relations Act.
Exception 3: What If I’m a Public Sector (Government) Employee?
Public sector jobs are government jobs. These can be with a town, city, county, state or the federal government. In general, each public employer will have some rules and regulations describing its employment practices. The rules normally cover hiring, firing, rates of pay or raises, promotions or discipline. There are certain public sector jobs that have grievance boards that must have hearings before a negative employment action can proceed. And because the employer is a government actor, the constitution assures that employees are entitled to some vague fuzzy requirements of “fairness” and “due process.” But each particular government employer may have different rules and regulations than the others.
If you’ve been fired from a public sector job, you (or your lawyer) will need to find out what that particular government employer’s rules say. Just like looking at a contract, you will need to read the rules carefully. Figure out exactly what the rules say and mean. What guarantee do they give you? What exactly do the rules say? Is it a “promise” or only a possibility? Are there conditions you have to meet IN ORDER TO GET the protection?
Exception 4: What Does “Illegal Discrimination” Mean? I Thought All Discrimination Was Against The Law?
“Discrimination” is treating one person differently from another. This can be for good reasons, such as “I’m only hiring people with experience doing heavy equipment welding.” Or it can be for bad reasons, such as “I’m not hiring African-American people.”
The law specifically lists prohibited reasons that CANNOT be the basis for treating people differently in employment:
- National Origin
If you have been treated differently than someone else, the question is “Why”? If the different treatment was because of one of these prohibited factors, then it’s illegal. If the different treatment as because of some other reason (such as, the boss just doesn’t like you), that probably will not be considered as illegal discrimination.
Example. Suppose the company is having financial trouble and has to lay off some employees. You got laid off, and Fred got to keep his job. You believe the reason is because you’re female and the boss is favoring “the boys.” Or because you’re over age 40, and the boss is only keeping the young workers. The different treatment you received was “because of” one of the prohibited factors. That would be illegal discrimination. Illegal discrimination is an exception to At-Will Employment. You may have a legal remedy for being laid off.
Example. But suppose you were laid off and Fred was kept on because Fred and the boss are old church friends while you and the boss just never got along. You got laid off and Fred didn’t, so you were treated differently. But you know it wasn’t because of race, gender, age, religion, and the like. So you know it’s not “illegal discrimination.” This situation will not be an exception to At-Will Employment. You probably will not have a legal remedy for being laid off.
The important question is “why” there was different treatment. If it was because of one of the listed prohibited factors, then it’s illegal and an exception to At-Will Employment. If it’s for any other reason that is not on the prohibited list, then it’s not an exception to At-Will Employment.
An employer may not fire, demote, harass or otherwise "retaliate" against an individual for filing a charge of discrimination, for participating in a discrimination proceeding, or opposing discrimination. The same laws that prohibit discrimination based on race, color, sex, religion, national origin, age, and disability also prohibit retaliation against individuals who oppose unlawful discrimination or participate in an employment discrimination proceeding.
My Company Didn’t Discriminate Against Me, But My Supervisor Did. Can I Still Sue?
Suppose the company has very clear policies against illegal discrimination. Nevertheless, your supervisor discriminated against you for prohibited illegal reasons. Can the company be sued? In general, the answer is ‘Yes.’ Title 42, Section 200 of the US Code expressly includes “any agent” of an employer in the definition of employer. Your manager is an agent of the company. If your manager discriminated against you, then the company can be sued.
In these situations, however, it is important that you try to go around the supervisor. If the company is not aware of what the supervisor is doing, then the company doesn’t have a chance to make things right. If you tell the higher-ups what’s going on, or if it’s clear that they already know, then the company will be held responsible for the illegal acts of the supervisor.
Exception 5: What Does “Disability” Mean And What Protections Does A Person With Disability Have?
There are several laws that prohibit employment discrimination based on disability. The most important is the Americans with Disabilities Act (ADA). Many states and cities also have protections for people with disabilities. The first step is understanding what the term “disability” means.
A person can show that he or she has a disability in one of three ways:
- A person may be protected as ‘disabled’ if he has a physical or mental condition that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning);
- Or, a person may be protected as ‘disabled’ if she has a history of a disability (such as cancer that is in remission);
- Or, a person may be protected as ‘disabled’ if he is believed by the employer to have a physical or mental impairment, even if he does not actually have such an impairment.
Not everyone with a medical condition is protected by the law. In order to be protected, a person (1) must have a disability in one of the three ways just listed, AND (2) must be qualified for the job.
If I Have A Disability What Protections Does the Law Give Me?
The law requires an employer to make “reasonable accommodations” for an employee or applicant who has a disability. The term “reasonable accommodation” is very flexible. What is reasonable will depend entirely upon the facts of any given situation.
Example. Suppose you use a wheelchair. The desks at the company where you are applying are too low for you to fit your chair under. You ask for a taller desk. That does not impose a significant difficulty or expense on the employer. That would be a reasonable accommodation. The employer cannot refuse to hire you because of your need to use a wheelchair.
Example. Now suppose you are applying to work on the factory line, with your wheelchair. The company would have to re-build the entire line system, costing hundreds of thousands of dollars, to make it possible for you to work in the wheelchair. That would be an “undue burden” on the company. That would not be a reasonable accommodation. The employer would not have to offer you the job under those conditions.
People with disabilities must have the job skills and qualifications required of any other applicant for the same position. The employee must be able to perform the job for which she’s applying. If not, the employer doesn’t have to provide a reasonable accommodation. Also, the ADA doesn’t require an employer to create new jobs or displace existing employees from their positions.
Exception 6: If I’m Pregnant, Can I Be Fired?
The Pregnancy Discrimination Act (PDA) forbids discrimination based on pregnancy when it comes to any aspect of employment. This includes:
- job assignments
- fringe benefits, such as leave and health insurance, and
- any other term or condition of employment.
If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer must treat her in the same way as it treats any other temporarily disabled employee. For example, the employer may have to provide light duty, alternative assignments, disability leave, or unpaid leave to pregnant employees if it does so for other temporarily disabled employees.
Additionally, impairments resulting from pregnancy (for example, gestational diabetes or preeclampsia) may be disabilities under the Americans with Disabilities Act (ADA). An employer may have to provide a reasonable accommodation (such as leave or modifications that enable an employee to perform her job) for a disability related to pregnancy, absent undue hardship (that is, significant difficulty or expense).
It is unlawful to harass a woman because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. Harassment is illegal when: (1) it is so frequent or severe that it creates a hostile or offensive work environment; or (2) when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
For all employment-related purposes, women affected by pregnancy, childbirth, or related medical conditions shall be treated the same as other people who aren’t affected by pregnancy, childbirth or related medical conditions. This includes receipt of benefits under fringe benefit programs.
The EEOC has more information about pregnancy discrimination.
What Should I Do If Illegal Discrimination Has Affected My Job?
There is a West Virginia state agency that investigates claims of illegal discrimination. There is also a separate federal agency that investigates illegal employment discrimination. If any of the “illegal discrimination” grounds apply to you, you should file a complaint with one or both of these agencies.
State agency: The West Virginia Human Rights Commission (HRC). The deadline to file a complaint with the HRC is one year (365 days) after the “last act of discrimination.” There is a form on the HRC web site to help you file a complaint. Or you can talk directly with a Human Rights Commission staff person to explain your complaint. You do not need an attorney to do this (although working with an attorney is always a good idea). Contact the WV Human Rights Commission at:
West Virginia Human Rights Commission
1321 Plaza East Room 108A
Charleston, WV 25301-1400
Telephone: (304) 558-2616
Toll Free: (888) 676-5546
Fax: (304) 558-0085
Federal agency: Equal Employment Opportunity Commission (EEOC). The deadline to file a complaint with the HRC is six months (180 days) after the “last act of discrimination.” Get more information about the EEOC complaint process. Contact the EEOC at:
Pittsburgh Area Office
William S. Moorhead Federal Building
1000 Liberty Avenue, Suite 1112
Pittsburgh, PA 15222
ASL Video Phone: 844-234-5122
Exception 7: Can I Be Fired for Making a Safety Complaint?
Probably not, as long as the safety concern you raised is legitimate. This is true even if your safety concern in the end turns out to be mistaken. Your safety complaint does not have to be “right” for you to be protected in making a complaint. But you do have to have a good faith basis for believing there is a safety concern. If you don’t have any good reason for suspecting a safety problem, then you may not be protected when making a safety complaint.
You will need to be careful that the safety issues you raise are serious and legitimate. If they are minor or frivolous, you won’t be protected. If they’ve been investigated, and experts have decided your concerns are incorrect, you may not be protected for continuing to complain about the same thing. You need to use good judgment in asserting safety concerns. But if you do so, you will probably be protected against retaliation for complaining about legitimate safety issues or making a worker’s compensation claim.
To be clear, there is no statute that specifically protects safety complaints. But some court cases limit the normal At-Will Employment right to fire, if the reason for firing contradicts a strong public interest. Courts recognize a strong public interest in assuring the health and safety of employees and customers and members of the public.
Exception 8: What Firings “Violate Strong Public Policy?
There are court cases that limit firing or demotion in At-Will Employment when the employer is violating some “strong public policy.” The best way to explain this concept is to give an example, from the first case in West Virginia that created the ‘public policy’ exception.
The president and other officers of a bank were doing things that violated banking laws. An employee realized what was happening. The employee told the officers if they kept doing illegal things the employee would tell the bank’s Board of Directors what was going on. The bank officers then tried to fire the employee, to cover up their illegal activities. The court ruled that this was an exception to At-Will Employment. The bank would not be permitted to fire the employee for blowing the whistle on illegal conduct.
What are some other examples? We don’t want employers interfering with employees who are serving on a jury. We want to protect people who are trying to use the procedures of government such as Workers Compensation claims, or filing workplace safety complaints with OSHA, or participating as witnesses in illegal discrimination cases. All of these things are “strong public policy.” If you are fired or demoted for engaging in this kind of activity, you may have a good legal claim against the employer.
Can I Get Unemployment Compensation if I’ve Been Fired?
Yes, unless you were fired for “Gross Misconduct.”
As we’ve explained, lots of firings and layoffs are completely legal under At-Will Employment. If it’s an At-Will Employment job, then the company can fire for smart reasons or stupid reasons or no reasons at all. If it’s an At-Will Employment job, you won’t have a claim for back pay or a claim to get your job back.
Almost none of this matters for Unemployment Compensation benefits. It doesn’t much matter whether your firing was “legal” under At-Will Employment. Unemployment has a whole different set of rules. Winning (or losing) a Wrongful Discharge case does not necessarily mean you will win (or lose) an Unemployment Compensation case.
Under Unemployment Compensation law, there are three categories of people who are fired:
- Fired but not for “Misconduct.” In this category you get full Unemployment Compensation benefits. The firing might be legal under At-Will Employment. But it doesn’t matter. You didn’t do anything wrong. You will get Unemployment Compensation benefits.
- Fired, for “Simple Misconduct.” In this category you lose the first six weeks of Unemployment Compensation benefits. Then you can draw up to the remaining twenty weeks if you are unemployed all that time.
- This is usually for breaking ordinary workplace rules, like coming in late, missing work, or failing to follow order.
- Fired for “Gross Misconduct.” In this category you DO LOSE ALL Unemployment Compensation benefits.
- This is usually for very serious behavior. Some examples are: assaulting a co-worker or supervisor; committing arson, burglary or theft of the employer’s property; or coming to work under the influence of alcohol or controlled substances.
- There is also a Gross Misconduct penalty if (1) you do something that would be ordinary Simple Misconduct; and (2) you get a written warning that if you do it again you could be fired; and (3) then you do it again and get fired for ‘doing it again.’
Here are some other examples:
Example 1 – No Misconduct. Suppose you were fired so the owner could give your job to his cousin. You didn’t do anything wrong. The firing may be perfectly legal under At-Will Employment. But you will get your Unemployment Compensation benefits for weeks when you are out of work.
Example 2 – Simple Misconduct. Suppose you are fired for coming to work late, absenteeism, or violating some other company rules. The firing is “legal” under At-Will Employment. You will get some Unemployment Compensation, but you will have to wait six weeks before you start getting them. And you will be limited to 20 weeks of benefits instead of the normal 26 weeks.
Example 3 – Gross Misconduct. Finally, suppose you are fired for stealing from the company, coming to work intoxicated, or assaulting the supervisor or co-workers. The firing is legal. And in this situation, you also will not receive any Unemployment Compensation benefits.
Unemployment Compensation is a whole different area of law. There are lots of rules, that have nothing to do with whether a firing was “wrongful” or “proper.” Legal Aid has another set of Frequently Asked Questions about Unemployment Compensation law.