What are the steps when pursuing a “wrongful discharge” case?
- posted: Feb 28, 2014
Today I will begin a series of Blog Posts intended to explain the process of pursuing a “wrongful discharge” case against a former employer. My hope is to explain the process using plain language. My purpose is to help prospective clients decide whether this is a course of action they want to pursue.
STEP 1: IDENTIFYING THE LEGAL CLAIMS.
First, let’s answer the question: what is “wrongful termination?”
Ohio is an employment “at will” State. As a result, unless you are a member of a labor union or you are a government employee, or you otherwise have an employment contract that dictates the terms and conditions of your employment relationship, your employer can terminate you for any reason or no reason at all.
No. They do not have to have a good reason to fire you. They don’t have to follow their own policy handbook and they don’t have to put it in writing. Unfair does not necessarily mean unlawful. It is not against the law for an employer to make a bad management decision. And it is not against the law for your boss to be a jerk.
Wrongful discharge is a claim, but how you define that claim is important. Usually, we’re looking for a claim arising out of some other violation of law, for example, it is unlawful for an employer to terminate an employee because of their: race, national origin, sex, gender, religion, disability, or age.
Other examples of unlawful terminations include: employers who terminate an employee because they exercised their rights under the Family Medical Leave Act or because they filed a workers compensation claim, or called OSHA to report a safety violation. There are many other possible claims.
It’s usually not enough to say that employer’s decision was “wrongful” I’m looking for an “unlawful” act. Once I’ve identified whether the employer violated a law, I can then move to the next step of the process: the preliminary investigation.
This is the stage where I do an investigation of the facts. I meet with the prospective client to gather the facts from their point of view. We record an extensive history, review documents, and talk to witnesses. It is important to gather and record the facts early in the process because a case, such as this, can drag on for more than a year.
One of the things I like to do during this phase is get involved with the client’s unemployment application. The unemployment claim is the employer’s first opportunity to explain and record their reasons for the discharge and I want to know those reasons.
This step often includes a letter to the former employer that outlines the facts from my client’s perspective and gives the employer an opportunity to answer before a case is filed. Once we receive a response to this letter, my client and I can then decide where to go next.
Next week I'll explain Step 2 in the process of pursuing a wrongful discharge case – Pre Litigation Settlement.