Protect Your Employee Rights Before a Wrongful Termination

If you suspect that you are about to be fired, it is wise to tamp down the anger and worry and understand your employee rights, in particular how to support a claim of wrongful termination, discrimination, retaliation or other possible legal action available to you. This is a tough situation, but you are in a unique position to protect your professional reputation, earnings, and benefits. An employment lawyer can help cushion the blow, so reach out to Kilgore & Kilgore.

Our Employment Lawyers Can Help You Protect Your Employee Rights and Pursue a Wrongful Termination Lawsuit

If you believe that you are about to be fired or have been fired in violation of the law, the Texas employment attorneys at Kilgore & Kilgore can help you determine what legal remedies may be available to you and help you fight for your employee rights. Click the following link to learn more about wrongful termination Wrongful Termination. We offer a free review of the facts of your case. Use this link to reach us Contact Kilgore & Kilgore.

Protect Your Employee Rights in an Employment Termination Scenario

Perhaps the signs have been there for a while – negative performance reviews, a frosty relationship with your boss, a cutback in responsibilities. Or perhaps a sudden management change or new cost-cutting initiatives have left everyone scrambling. Either way, if you think you are about to be fired, you should take steps now to protect yourself, your finances, and your professional reputation.

Most firings feel unjust at the time. In Texas, a termination is illegal only if certain criteria are met. For a termination to be illegal, it generally requires that that the former employee be able to show that a statute has been violated, a contract breached or, in rare instances, that the way the employee was fired was so outrageous or abusive as to constitute a tort, like assault.

Suing for wrongful termination is not the only action an employment lawyer can take to protect your employee rights in this situation. It may be helpful to think about this as a three-step process. There are things you can do to protect yourself before you are fired. There are things you can do to preserve your rights as you are being fired. And, there may be steps you can take after the fact.

How a Typical Termination Goes Down

You may be called into your supervisor’s office, there may be a human resources person present, you may be told that your performance has not met company standards or something similar, and that your employment is ending immediately. You may be asked if you have any questions. You may be asked to sign a release or other document. While this is happening, you may be locked out of your work computer and voicemail. Key codes may be changed. Then, the human resources person may escort you to the door or elevator. You may or may not have the chance to collect personal effects. If not, they may be sent to your home address within a few days. You may not have a chance to say goodbye to anyone. Most firings happen on a Friday. There you are – on the street and in shock. Go somewhere quiet, write down detailed notes about what happened – everything you can think of – and go home. Joe’s Bar & Grill is not a good idea.

Tips to Minimize Harm Before you are Fired

Prepare and defend yourself to the extent possible should you anticipate a firing in your future. Here are some actions to consider.

Try to address causes for any dissatisfaction with your performance before they become reasons to fire you. It’s a good idea to ask your supervisor and human resources representative for frank feedback.
Take early steps to prepare your job search. These may include lining up good references and updating your resume. Have lunch with friends in the same field to find out who is hiring. It is best to be discreet. Visit job posting sites. The truth is, though, it is always smart to stay abreast of your industry and to maintain contacts who may be helpful and vice versa. If appropriate, consider joining professional organizations and work those contacts. Stay active and visible in your field.
Prepare 30-second and 60-second talks about you, your abilities, reputation, and skills so you are ready to articulate your strengths when people inquire at networking events.
Gather and save your professional records. These may include offer letters and contracts, performance reviews, proof of raises and bonuses, work schedules, job assignments and any praise that have received from managers, clients, colleagues, business associates, and vendors.
Keep a log of incidents in which you experienced harassment, discrimination, retaliation, or that you believe may support a claim of bias, including similar actions toward co-workers.
Discreetly clean out personal information from your workspace, including passwords to personal emails and social media sites, etc. All records relating to your employment situation should be kept at home, not in the office.
Schedule doctor and dentist appointments while you still have insurance.

Minimizing Harm during the Exit Interview

There may be a few things you can do, even during that awful exit interview, to minimize the damage that losing your job causes, such as:

First, try to say as little as possible.
Second, do not sign anything. Practice the phrase, ”I’d like to have the chance to review this with my lawyer” so that rolls off the tongue even when you cannot engage your brain.
Third, if your termination involves a non-disclosure agreement, non-compete agreement, confidentiality agreement, or another type of separation agreement, review it carefully with an employment lawyer. These documents may have enormous impact on your career, are often negotiable, and may not be legal or enforceable as written.
Fourth, since you may see the situation coming, consider this: your employer may want something from you, like a release from liability or a non-compete agreement. Talk to an employment lawyer about the possibility of having an ask of your own, like a severance agreement or an enforceable agreement about a positive or neutral reference. Work out your strategy in advance. Toss negotiations to your lawyer. But, make your ask during that interview. Tell the person conducting the exit interview who will be in touch with the company regarding your situation.
As soon as you leave the exit interview, preferably within 20 minutes of leaving, write down detailed notes on everything that happened and what was said. Contemporaneous notes may be helpful later.

Deciding if your Firing Was an Illegal Wrongful Termination

Employment at will – Texas, like many states, subscribes to the theory that an employer may fire an employee for a good reason, bad reason, or no reason at all. Of course, employees may quit under the same rules. This is called employment-at-will, and although it may look fair on paper, it actually is disadvantageous to employees.

Violations of law and public policy – There are, however, a growing collection of exceptions to the employment-at-will rule based on federal or state statutes. Here are a few:

Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and Texas Labor Code Chapter 21 (enforced by the Texas Workforce Commission’s Civil Rights Division) all prohibit employment discrimination, including termination, on the basis of an employee’s race, color, national origin, religion, sex, age, and disability. Pregnancy discrimination, sexual harassment, or other workplace harassment based on a protected characteristic are also prohibited. The point of collecting professional records of promotions or accolades or keeping a log of potentially biased or harassing incidents is to support a claim that an adverse employment action or termination was based on a prohibited reason.

Under the Corporate and Criminal Fraud Accountability Act of 2002 and Title VIII of the Sarbanes-Oxley Act of 2002, an employee of a publicly traded company who is terminated as a result of reporting fraudulent activity, environmental law abuses, or safety violations may be able to sue for illegal wrongful termination. Whistleblowers have also succeeded in pursuing wrongful termination and retaliation claims under the False Claims Act for reporting instances of Medicare fraud cases or other illegal acts against health care institutions.

In Sabine Pilot Service, Inc. v. Hauk, the Texas Supreme Court ruled that an employer in Texas may not terminate an employee for refusing to commit an illegal act. If someone is terminated solely because s/he refuses to commit a crime, they may be able to sue for illegal wrongful termination.

In a more general way, courts have been willing to look to the public policy of the state and federal governments to determine if the termination of an employee violates the interests of the general public. This might include being fired solely for filing a worker compensation claim or being fired for serving jury duty or for complying with a valid subpoena, for example.

Breach of contract – An employee with a written contract may be able to bring a breach of contract lawsuit when the terms of the agreement are violated, including situations where an employee is allegedly fired for cause in order not to pay the employee severance set forth in the employment agreement. Or an employer may refuse to pay earned incentives or bonuses in breach of an employment contract.

Tort claims – In even rarer cases, where the employer’s conduct toward the employee is particularly outrageous – security guards literally tossing a fired employee onto the sidewalk, or the boss cursing up a storm and flinging a stapler which hits the employee – an employee may have a tort claim for assault or intentional infliction of emotional distress.

Realistic Assessment of Wrongful Termination Claims

The employment-at-will doctrine is a stumbling block for wrongful termination lawsuits. Because the facts surrounding a termination are so often ambiguous, only some employees are successful in wrongful termination lawsuits. But that does not mean that the employee has no legal recourse. An employment lawyer may be able to cushion the blow considerably. The employment lawyer may help in the negotiation of a settlement, a severance agreement, or an enforceable agreement about references. Even if the facts are not sufficient to support a wrongful termination lawsuit, they may support another cause of action. Your finances and professional reputation are worth defending and you should take advantage of the opportunity to review your situation with legal counsel.

Kilgore & Kilgore

Know What to do Before You Get Fired to Protect Your Employee Rights Should You Wish to Make a Wrongful Termination Claim