Kilgore & Kilgore in Dallas and New York receives many inquiries every month from people who were terminated from their jobs. These folks think they might have a wrongful termination case against their former employers and want to explore their options with an attorney.

In 2010 Kilgore & Kilgore settled 52 employment cases, up 31 percent over 2009. We undertook numerous lawsuits against employers who terminated personnel but more often than not, the cause of action was something other than wrongful termination. Many of these cases were settled out of court, before litigation commenced. Others were settled in court where the judge or jury decided the outcome. Some were settled in mediation. Many were settled in arbitration because the terminated persons signed employment agreements stipulating settlement only through arbitration.

In a wrongful termination case, the terminated employee must prove more than having been treated unfairly, s/he must be able to prove one or more of his/her legal rights were violated. Employees in Texas and many other states are at a disadvantage, possessing few rights, because of the employment at will rule, meaning employers can fire employees at any time and for no reason at all, just like employees can quit any time and for any reason. This makes the definition of wrongful termination extremely narrow. In fact, a wrongful termination case involves an employer who terminates someone because of discrimination on the basis of age, race, color, national origin, gender, or disability; for refusing to commit illegal acts for the company; for whistle-blowing on violations or crimes; for taking maternity or family leave; or if the firing violates the terms of an employment agreement between the company and the employee.

The majority of terminated employees have no wrongful termination rights. Some reasons for termination that disqualify a wrongful termination action include being fired for minor causes such as being late to work or violating a smoking policy, being singled out when less qualified workers keep their jobs, refusing to relocate or accepting a different position, reporting bad behavior of a supervisor or co-worker, a personality conflict, receipt of a high salary, or so a relative can take a job. There are a number of exceptions to the employment at will rule. Here are some of the more common exceptions:

• Discrimination — 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, the TWC Civil Rights Division, prohibit employment discrimination, including termination, on the basis of an employee’s race, color, national origin, religion, sex, age and disability. Also prohibited is discrimination based on pregnancy, and sexual harassment or other workplace harassment based on a protected characteristic.
• Whistleblower Protection – Under the provisions of the Corporate and Criminal Fraud Accountability Act of 2002, 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 have a lawsuit for wrongful termination.
• Sabine Pilot Exception – Under the phrase Sabine Pilot, which is named after the first Texas Supreme Court case to recognize this cause of action, an employer in Texas may not terminate an employee for refusing to commit an illegal act. If someone is terminated for the sole reason of refusing to commit a crime, s/he may have a lawsuit for wrongful termination.
• Violations of Public Policy – Courts look to the public policy of the states and federal government to determine if the termination of an employee violates the interests of the general public. For example, if employers were allowed to fire employees for filing a worker’s compensation claim, complying with a valid subpoena, taking unpaid family medical leave, and requesting special accommodations for a disabled worker, the employer’s actions would undermine the public policy.
• Breach of Contract — An employee may have grounds for a wrongful termination claim when a party to the contract (employer) terminates the employee in violation of an oral or written contract that the employer and employee have arranged. This has been known to include unequivocal oral promises regarding having a job as long as the employee was doing good work, or that an employee will not be fired if s/he acted in clearly specified circumstances.

The severity of each of these violations can vary based on the laws broken. Some can result in statutory penalties, while others mean that the employer must pay the wrongfully terminated employer for lost wages, expenses, and punitive damages.

Wrongful termination complaints can be filed in one of two ways, with a government agency that enforces labor laws or in a private lawsuit. If the violation is subject to a specific part of state or federal law, start with an organization like the Equal Employment Opportunity Commission, the Occupational and Safety Hazards Administration, or your state’s labor offices. If you decide to seek a private consultation with an attorney, Kilgore & Kilgore in Texas and New York practices employment law and offers a free, private consultation over the phone.