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Being fired from your job certainly isn’t the best feeling and, most of the time, it won’t sit well with you (nor do we don’t blame you). Worse, if you’re fired for suspicious reasons, or if the circumstances were less than ideal, you might be wondering if you have a legal claim for wrongful termination. Is it illegal for your boss to be an a**hole? Depending on the circumstances, it might be, so read on . . .
We at Odell Law are here to hopefully clear-up any confusion you may have before you decide to pursue a claim against your now ex-employer. Based on our experience as California employment attorneys, we’ve created a convenient checklist for all potential new clients who are curious if they might have a wrongful termination claim.
You can follow this guideline before you contact an attorney in order to save some time. It could help you and your attorney determine whether you have a valid claim and understand the inner-workings of a successful wrongful termination case.
PROVING A WRONGFUL TERMINATION CASE
In order to give your case/claim the best chance to win, you will need compelling evidence to prove you were wrongfully terminated by your employer. Here’s where to begin:
What’s Their Reason For Firing You?
Ask your employer why they’re terminating your employment. They may or may not be willing to do this because the law technically doesn’t require it. This seems backwards and unfair, we know, but it’s true. However, it’s certainly very shady if they won’t give you a reason.
Still, if possible, getting this in writing may be a big help to your case. More often than not, your employer will provide a termination letter stating their official reason, so keep that handy. This could provide interesting context and could also bind the company if there’s a lawsuit. We’ve seen many attempts to “rewrite history” once the company’s lawyers get involved, so having a reason in writing (even if it’s BS) is a good way to lock them down. Whether or not it’s true a matter for your attorney to investigate, but at least you won’t be dealing with a moving target during your lawsuit.
How Did They Fire You?
Employment lawyers want to know the environment surrounding your termination. Was it over the phone? email? Were you called into a meeting? If so, who was present and who was giving the termination speech? During our intake meetings, we focus a lot on the final encounter between you and your employer. We look for details regarding the conversation that took place: what you said in response to learning of your termination, how they were acting while delivering your termination, and if anything transpired afterwards, such as emails, coworkers reaching out, etc.
Attorneys will also ask if you received a severance agreement. If you did, you should definitely contact an attorney before signing the agreement. Typically, severance agreements require you to waive any and all claims against your employer (including wrongful termination) in exchange for money (usually way too little). Some agreements give you seven days to reconsider and “revoke” your signature, however, most don’t and once you’ve signed, you can’t sue.
Did You Sign An Arbitration Clause?
Arbitration is not great for your case, so your employment attorney will definitely want to know if you’ve signed one. The worst part is that almost all employees are required to sign it as a condition of their employment (i.e. sign this or you won’t be hired). This clause may also be found buried in your employee handbook, which is also usually enforceable.
Unfortunately, arbitration makes your case a little more difficult, as you will not be allowed to sue your employer in a court of law, nor will your case ever be presented to a real judge or jury. Rather, your case will be decided by an arbitrator who: (1) is selected by your employer, (2) is paid by your employer, and (3) won’t want do to anything to make your employer upset as they will want to secure future work with them as the repeat customer. Further, arbitrators don’t have to follow the law and their decisions can’t be appealed, even if they’re wrong.
Create A Detailed Timeline Of Everything That Happened Leading Up To Your Termination:
Writing a journal or timeline of all the events, including dates, leading up to when you were fired helps in two ways: first, it allows your attorney to understand, in detail, your entire case. Second, should your case go to litigation, it may be a year until your deposition is taken, at which point, you may have forgotten most of what happened. Thus, jotting down what you remember now – at the time when everything is fresh in your mind – will help refresh your memory months later and help you give killer deposition testimony. Be sure to include names and job titles of the people involved in your termination.
You can include any positive commendations your coworkers gave before your discharge. At Odell Law, the most common statements our clients send us are text messages from former coworkers who’ve just learned of their termination and sent words of encouragement while expressing their disappointment of the news.
If there are other employees who have similar job performance as yours but were not fired, include their names and a description of how they were treated in comparison to you. This could strengthen a claim of differential treatment based on your protected class or activity. Additionally, write down the names and titles of fellow employees who may be helpful witnesses on your behalf. However, be careful when contacting current employees, as they are still employed and may be subject to their employer’s directions/requests.
At Odell Law, we ask our clients to provide a detailed timeline with a “cast of characters” and dated incidents. If your termination was based on retaliation, include a description of what and why your employer was retaliating against you. Did you complain to HR about illegal activity (like discrimination, harassment, fraud, etc.)? Jot down the date and summarize how it all went down. Dates are important, as there is a Statute of Limitations for nearly all employment claims. Currently, California law gives you one year from the date of the discrimination or harassment to file your claims based on the Fair Employment and Housing Act (i.e. discrimination, harassment, failure to accommodate, etc.).
Be Proactive About Searching For Employment:
You may be feeling distraught over your most recent loss of job and not ready to move onto the next, but it is essential that, once you are able to work, you make a good faith attempt to find comparable employment. This is referred to as “mitigating your damages.”
Should your case go to trial, the employer and their attorneys will attempt to limited your lost wage damages by arguing that you failed to make efforts to obtain comparable employment (thus you should get $0 because you should have found a new job). Thus, when searching for a new job, make sure to track all your efforts and keep a file with copies of the jobs you’ve applied for, any correspondence with potential new employers, and applications you’ve submitted. This evidence may be critical later in time.
