Termination After Unfair Warnings and Write-Ups
Here is a common workplace situation. An employee enjoys his work and his career at a company or at a public office for many years. Then, a new manager steps in, who tries to prove himself or who is simply on a power trip, and he starts making his subordinates' life much more difficult by increasing workload, changing schedule, transferring employees and issuing harsh performance reviews and disciplinary notices such as warnings, write-ups, and reprimands. That new manager might have decided to get rid of a few employees as soon as he took that new managerial position. He therefore issues write-ups to those employees he is targeting just to create a paper trail to make it look like he gave those employees a "chance to improve" before he fired them. In most cases, when you receive a warning or a PIP (Performance Improvement Plan) from your supervisor, it means that the decision to terminate you has already been made. And, they really don't care whether you improve your alleged substandard performance or not. They are just creating paperwork to make it look like they gave you a chance to improve before the inevitable termination.
1. Is there any legal recourse against these write-ups that culminate in termination?
Assuming that you are an at-will employee and not a union member (union members can file a grievance for unjust discipline or termination), no claim can be made for a wrongful termination, unless there is specific evidence of unlawful discrimination or retaliation. Otherwise, being treated unfairly, being micromanaged, etc. is not illegal. Simply believing that you were discriminated against because of your age, race, religion, sexual orientation, familial status, disability, etc.., is not proof of discrimination. After all, we all belong to some kind of protected class - we are all of some specific gender, religion, familial status, etc. In wrongful termination cases the critical question is whether there is evidence that the reason for termination is your being a member of protected class and not some other personal reason (fair or unfair). And, the fact that you have been an excellent worker for many years at the same company and that you have a documented history of accomplishments with the same employer, does not alone establish or is even relevant to proving discrimination or wrongful termination. Likewise, the fact that the write-ups are completely unfair will also not prove discrimination, in part because your supervisor is entitled to his subjective opinion and evaluation of your performance.
What are some of the common scenarios where there is evidence of wrongful termination?
Here are three common situations that we see over and over where employers do violate the law by discriminating, retaliating and illegally firing employees:
Many other facts will determine whether a wrongful termination claim can be made as no two cases are alike, just like no two employee or employers are alike. If you believe that you might have been wrongfully terminated due to discrimination or retaliation, you should discuss your legal options with an experienced employment attorney.
What are your options when you are terminated for unfair reasons but not illegally?
1. Is there any legal recourse against these write-ups that culminate in termination?
Assuming that you are an at-will employee and not a union member (union members can file a grievance for unjust discipline or termination), no claim can be made for a wrongful termination, unless there is specific evidence of unlawful discrimination or retaliation. Otherwise, being treated unfairly, being micromanaged, etc. is not illegal. Simply believing that you were discriminated against because of your age, race, religion, sexual orientation, familial status, disability, etc.., is not proof of discrimination. After all, we all belong to some kind of protected class - we are all of some specific gender, religion, familial status, etc. In wrongful termination cases the critical question is whether there is evidence that the reason for termination is your being a member of protected class and not some other personal reason (fair or unfair). And, the fact that you have been an excellent worker for many years at the same company and that you have a documented history of accomplishments with the same employer, does not alone establish or is even relevant to proving discrimination or wrongful termination. Likewise, the fact that the write-ups are completely unfair will also not prove discrimination, in part because your supervisor is entitled to his subjective opinion and evaluation of your performance.
What are some of the common scenarios where there is evidence of wrongful termination?
Here are three common situations that we see over and over where employers do violate the law by discriminating, retaliating and illegally firing employees:
- If an employee been working at a company for 20 or more years and then he is fired for some petty and replaced with someone much younger and less qualified, it is really worth investigating that situation further to determine whether age discrimination claim can be made. This is especially true if the manager has been commenting on the older employee's pace of work or encouraged him to retire.
- If an employee had a history of good work performance, and he started receiving negative performance review shortly after filing a workers comp claim, or going on disability leave or FMLA leave, and was terminated shortly thereafter, it would be worth exploring whether disability discrimination claim can be made. This is especially the case if the employer made it known in so many ways to the employee that that they are not happy about the employee's medical leave or they are not willing to prove the disability accommodations requested.
- If an employee has been disciplined and terminated for a false or petty reason shortly after making a harassment or discrimination complaint, it would be a good ideal to look into whether retaliation claim can be made. Another helpful peace of evidence in proving retaliation would be showing that other employees have not been disciplined at all or have been disciplined much less harshly than you were for the same violation.
Many other facts will determine whether a wrongful termination claim can be made as no two cases are alike, just like no two employee or employers are alike. If you believe that you might have been wrongfully terminated due to discrimination or retaliation, you should discuss your legal options with an experienced employment attorney.
What are your options when you are terminated for unfair reasons but not illegally?
- If you have been offered severance, it's a very good idea to try to negotiate a higher severance. We regularly advise employee on effective negotiation strategies in each specific case, which can be very different, depending on the circumstances of termination. Feel free to contact us to discuss your severance negotiation strategies.
- You should also apply for unemployment benefits while looking for another job. If your employer tries to oppose your application, this is something that we can also help you with. Feel free to contact us for help with unemployment benefits appeal process.