Defend Yourself in a Wrongful Termination Lawsuit

Even though most employment is employment "at will," meaning that employees can be fired for any reason or for no reason at all, employees still cannot be fired for illegal reasons. Under state and federal law, illegal reasons include discrimination, retaliation, or breach of a written or implied contract. If you've been served with a wrongful termination lawsuit filed against you by a former employee, consult with an experienced attorney as soon as possible. If the lawsuit goes to trial before a jury, the employee often will win.

Steps

Responding to the Complaint

1. Read the complaint and summons. The complaint and summons provide important information about the lawsuit against you, such as the name of the court and the person suing you and how long you have to respond.
   • Check the date when the employee was terminated. If it was a long time ago, the case might not have been filed within the appropriate statute of limitations – which provides a deadline before which a lawsuit can be filed.
   • You also should check the court where the lawsuit was filed. If it's far away from your place of business, it may not have jurisdiction over the lawsuit.
   • You also should consider subject matter jurisdiction. Generally, if the employee is suing under federal law, he or she must file the lawsuit in federal court. Likewise, wrongful termination lawsuits under state law typically should be filed in state court.
2. Notify any relevant parties. Depending on the size of your company, you may need to let others know about the lawsuit, such as ownership partners or the manager who terminated the employee.
   • At the least, you will need to talk to the manager who terminated the employee suing you, as well as his or her direct supervisor and anyone in your human resources department who processed the employee's paperwork.
3. Consult an attorney. In a wrongful termination suit, you need an experienced employer defense attorney, especially considering that the employee is likely to be represented by counsel.
   • Plaintiffs typically request jury trials in wrongful termination lawsuits, since juries tend to be sympathetic to the plaintiff and favor him or her over the employer. Due to the complexity of jury trials, having an attorney is a necessity.
   • Your local bar association typically has a searchable directory on its website of all attorneys licensed to practice in your area. Look for someone with experience defending employers in wrongful termination claims.
   • Another way to find a strong, experienced attorney is to talk to other business owners or managers in your community. If you know others who faced wrongful termination lawsuits, ask which attorneys they used and whether they were satisfied with the representation or have any other recommendations.
4. File your answer. Go over the plaintiff's allegations with your attorney and determine which ones you want to admit or deny as well as other defenses you want to assert.
   • Your attorney may wish to file a motion to dismiss or other motion depending on the contents of the complaint.
   • Any documents filed with the court must be served on the plaintiff (or the plaintiff's attorney). If your attorney files a motion to dismiss or other motion and requests a hearing, you may have pre-trial court dates to attend.
5. Consider going to mediation. A mediator can facilitate a relatively quick resolution to the lawsuit so you can carry on your business without the distraction.
   • Mediation is required in some courts, which provide a list of court-approved mediators from which you and the plaintiff can choose.
   • Aside from being informal and non-confrontational, mediation has an added benefit for you in that everything that takes place in mediation, including any eventual settlement, is confidential. This keeps your company from having to deal with the negative publicity attendant to a wrongful termination lawsuit that goes to a jury trial.

Gathering Information

1. Pull the employee's personnel file. The employee's personnel file will include information about the employee's performance and disciplinary record that could be important to your defense.
   • If, for example, the employee received negative performance evaluations or multiple disciplinary citations, he will have a hard time claiming that he didn't receive fair warning that his job was in jeopardy.
   • In contrast, a history of positive performance reviews weighs in the employee's favor, as she can use that to argue that she believed her continued employment was assured and was blindsided by the termination.
   • Conduct a thorough background check and review the information provided to you when the employee was hired.
   • If you determine that the employee lied on his or her application or resume, or during the interview, you may have a defense. Some courts don't allow wrongful termination claims where the former employee obtained the job by lying or misrepresenting his or her background, experience, or qualifications.
2. Interview managers and human resources representatives. You should talk to anyone at your company who worked directly with the plaintiff or had a role in his or her termination.
   • A wrongful termination suit often hinges on whether the employee was given fair warning that his or her employment was in jeopardy or subject to termination.
   • Any feedback given to the employee prior to his or her termination can be useful in your defense, because it can show that the employee was on notice.
   • At the same time, you need to know what managers or supervisors told the plaintiff regarding his or her chances for promotion or wage increases, and whether the plaintiff was misled about continuing opportunities.
   • If the employee was repeatedly transferred or experienced frequent changes to his or her hours, this information could be used to show you were trying to make him or her quit.
3. Review employee handbooks and written policies. Certain statements in your employee handbooks, such as "at-will" employment policies, may help you defend yourself in a wrongful termination lawsuit.
   • Check the language in your employee handbooks to make sure there are no assurances or guarantees of continued employment – or language that could be understood or interpreted as such.
   • Written policies or disclaimers that reiterate the at-will nature of employment help prove that the employee understood the employment relationship and that he or she was not guaranteed continued employment.
4. Evaluate administrative agency proceedings or actions. If the employee previously filed any charges at a federal or state agency, these reports will be important to the lawsuit.
   • Particularly if the plaintiff is claiming he or she was fired for a discriminatory reason, state and federal law require that he or she file a charge with the appropriate government agency before filing a lawsuit. If no charges were filed, you can use that information to have the lawsuit dismissed.
   • If the employee filed charges or reports with administrative agencies, check the dates those charges were filed and how they were resolved – particularly if the lawsuit alleges the employee was fired in retaliation.
   • Generally, if the employee was fired within six months after filing a charge with an administrative agency, he or she can claim the termination was retaliation. With a retaliation claim, the burden of proof shifts and you must show that you didn't fire the employee because of the charges she filed or for other legally protected activity.
5. Participate in discovery. Through discovery, you and the plaintiff will exchange information and evidence in preparation for trial.
   • Be prepared for requests for production from the plaintiff. The plaintiff will want copies of his or her personnel file, other human resources files, and any written employment policies or employee handbooks.
   • Even though these documents technically couldn't be used as evidence in court, they do qualify under the business records exception and generally will be admitted at trial provided they were prepared in the regular course of business.
   • Other potential evidence would include any written correspondence between managers, supervisors, or human resources employees regarding the plaintiff's termination. Any discussion of the reasons for the employee's termination potentially can be used as a defense in a wrongful termination lawsuit – particularly if they include non-discriminatory or retaliatory reasons.

Preventing Future Claims

1. Develop and implement written employment policies. Your employment policies should state explicitly that your employees are not guaranteed continued employment.
   • Your written policies should stress that employment is at-will, and not promise any level of job security beyond that. Be careful about using words such as "permanent," as they can imply employees cannot be fired.
   • You also should take care in the language you and any other managers use when new employees are hired. Avoid promising them anything beyond at-will employment, or discussing long-term employment hypotheticals.
   • Make it clear in your written employee handbook and other materials that the written policies supersede any statements any managers or supervisors make to employees, and that no statements about employment carry any weight unless they are in writing.
   • If you've included a disciplinary section with your procedure for write-ups and eventual termination, add a disclaimer that employment is still considered "at-will" and employees can be terminated for other reasons or for no reason at all, regardless of the disciplinary system.
   • Review your policies and procedures regularly to make sure they conform with existing state and federal employment law. You may want to get an attorney to assist you with this.
2. Provide orientation and ongoing training. Training for your employees and managers reinforces your policies and ensures that employees understand their status.
   • Orientation should include an explanation of written policies contained in the employee handbook, a copy of which should be provided to each employee.
   • Start the relationship off right by educating new employees from the outset about the nature of their employment and your expectations for employees.
   • Train managers to keep detailed written records of performance or disciplinary problems with employees. Anytime an employee is "written up," the form should be filled out completely by the manager and signed by both the manager and the employee after a discussion of the issue. Provide employees with a copy of these forms.
3. Conduct regular performance evaluations. Performance evaluations provide employees with ongoing feedback.
   • Given that many wrongful termination lawsuits hinge on whether the employee had fair warning that his or her job was in jeopardy, performance evaluations keep the record straight on how the employee is doing with the company.
   • If you have your employees on a probationary period in their first few months of employment, consider terminating employees who aren't performing well during that probationary period rather than extending the period in the hopes that their performance will improve.
4. Communicate expectations and requirements. Employees should understand exactly what is expected of them in the workplace as well as the consequences for not meeting those expectations.
   • Keeping employees in the loop in terms of what is required of them and how they are meeting or failing to meet expectations can help ensure that if someone is terminated, it doesn't seem to him or her as though it came out of nowhere.
   • You may want to consider having employees sign written acknowledgements of the at-will condition of their employment periodically. In the event a former employee chooses to sue for wrongful termination, these acknowledgements can protect you and your company.
5. Maintain consistent termination procedures. Analyzing a termination decision and communicating that decision to the employee effectively can minimize the possibility that the employee will conclude he or she has been wrongfully terminated.
   • You should consider consulting an attorney to review your termination procedures and get confirmation that they are appropriately shielding you from wrongful termination lawsuits.
   • Make sure all managers that have hiring or firing authority understand the policies and procedures you have in place, as well as why it's important to follow them to the letter every time.
   • Create a termination checklist that includes a list of all forms that must be completed and information that must be passed on to the terminated employee. This will keep your managers from inadvertently skipping a form that could have protected you from a lawsuit.

References

See also

• Sue the Government for Discrimination
• Claim Age Discrimination for Apprenticeship Programs
• Help Avoid Employee Lawsuits
• Verify Rehab Treatment for an Employee
• Handle Disciplinary Actions
• Claim Weight Discrimination
• Know if You Should Sign a Covenant Not to Sue
• File Charges With EEOC
• Defend Yourself in an Asbestos Exposure Lawsuit
• Take Legal Action if Fired for Having PTSD

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