We have represented and counseled thousands of clients in pre-termination and post-termination matters. We almost always represent the employee in these matters.
Some clients need help understanding their rights under the law. Some clients need help negotiating severance agreements or improving the severance agreements they have been given. We’ve represented many clients before the Equal Employment Opportunity Commission or on unemployment appeals to the Arkansas Appeal Tribunal. When all other options have been exhausted, we often represent clients in court or in arbitration.
Everyone who has come into this office thinks he or she has been wrongfully terminated. In many cases, we agree that the employer has been unfair. The fact is, however, all we can offer to 95 percent of these clients is our sympathy because the law does not punish employers who are merely unfair. The employer must have done something that is illegal. What is “unfair” is not necessarily “illegal.”
Most employees in this country are called “at will” employees. “At will” means that just as you are free to quit your job at any time for any reason, your employer can fire you at any time for any reason - or for no reason at all. The fact that you might have worked somewhere for 20 years does not change this rule. The fact that an employer might have fired you for the wrong reason does not change this rule. (Incidentally, “right to work” means – at least, in Arkansas – only that you have the right to work anywhere without being forced to join a union. “Right to work” does not place any restrictions on an employer to fire an employee.)
There are some exceptions to the “at will” rule, however. These exceptions are narrow, but if you fit within one of them, you might have a case for wrongful termination or employment discrimination:
First, if you have a written contract with your employer and you are fired or demoted in violation of some provision in the contract, then there has been a “wrongful” termination. If you have such a contract, please bring it with you to our appointment. Please note, however, that courts have said quite often that “employee handbooks” are not contracts unless they specifically say that they are contracts. A collective bargaining agreement between a union and an employer can be such a contract. You have to go through the grievance process as stated in the agreement before you can successfully bring a lawsuit, however.
Second, if you are fired or demoted in violation of some well established “public policy,” then there has been a “wrongful termination”. For example, it is a well established public policy that people or companies should not cheat or defraud the government. If you were fired or demoted because you reported your employer for defrauding the government, then your employer’s actions were wrong in a legal sense.
Third, if you were the victim of discrimination because of your age (over the age of 40 years), race, sex, religion, national origin, or handicap, then your firing or demotion would be wrongful in a legal sense. “Sex” discrimination includes sexual harassment. In sexual harassment cases, you might show that (1) you were harassed by a supervisor/manager or (2) that your supervisor/manager was aware of your harassment by a co-employee and did nothing about it. All of these cases require proof that your employer discriminated against you. Your “belief,” no matter how sincere, is not a substitute for facts. It is also illegal for your employer to fire you or demote you because you complained about illegal discrimination or because you helped a co-worker with his or her claim of illegal discrimination. This illegal behavior is called “retaliation.”
Please understand that the fact your boss does not like you and treats other people better than you is not necessarily discrimination. The different treatment must be rooted in your age ,sex, race, religion, national origin, or handicap.
Fourth, if you worked for a publicly-traded corporation and if you were demoted/fired because you reported conduct to your supervisors or to a federal investigator that you reasonably believed caused a fraud on the company’s shareholders, then you have a claim for retaliation under the federal “Sarbannes-Oxley” law.
Fifth, if you work for a public employer and you were fired because you complained about illegal conduct, you might be protected under the Arkansas Whistleblowers Act. The Arkansas Whistle Blower Act protects employees who have "evidence of a waste or violation while employed with a public employer and who communicates in good faith . . . to one or more of the employee’s superiors . . . or to an appropriate authority . . . ." "Waste" means "a public employer’s conduct or omissions which result in substantial abuse, misuse, destruction, or loss of public funds, property or manpower . . . ." "Violation" means "an infraction or a breach which is not of a merely technical or minimal nature of a state statute or regulation, of a political subdivision ordinance or regulation, or of a code of conduct or code of ethics designed to protect the interest of the public or a public employer."
A possible sixth exception to the “at will” rule involves the Family Medical Leave Act or “FMLA.” If you are on “FMLA” leave then (as a general rule), your employer must return you to the same position or a similar position upon your return. If you are not returned to such a position, then it is possible that you have a claim under the FMLA. To qualify for coverage under the FMLA, your employer must employ at least 50 people within a 75 mile radius from where you worked and you must have worked for this employer for at least one year and at least 1,250 hours during the previous 12 months. You can take up to 12 weeks of unpaid leave following childbirth or for a “serious medical condition” or to care for a spouse, child, or parent with a “serious medical condition.” Your employer can require you to provide it with documentation from a doctor.
The above information should not be considered “legal advice.” It is just a very general overview of employment law. We can offer legal advice only after we’ve had an opportunity to meet with you and discuss your particular circumstances.
* Termination for failure to do an act that would violate Arkansas law.