• An employee’s claim of wrongful termination will only hold up in court if the person can prove the termination violated a law, public policy, or right.

Many employers worry about terminating an employee based on fears that the person might file a wrongful termination claim. While these types of claims can and do occur, the employee needs to show some reason that the termination was wrongful, such as a violation of law or public policy, to prevail.

For example, an employee who was terminated shortly after taking leave under the Family and Medical Leave Act (FMLA) might claim that the termination violated the employee’s right to FMLA leave, or denied the job reinstatement required by that law. If so, the termination would have been wrong because it violated the law. The FMLA recognizes both interference claims and retaliation claims.

As another example, most state workers’ compensation laws prohibit employers from discriminating or retaliating against employees who file injury claims. Thus, if an employee is fired shortly after filing such a claim, the termination might appear to have been connected to the claim, and is therefore wrongful.

An employer may still terminate employees who have engaged in protected activity (like filing an injury claim, taking FMLA, making a discrimination complaint, making a complaint to the Occupational Safety and Health Administration (OSHA), or filing a claim for unpaid overtime. However, the employer needs to show that the termination was justified by other valid reasons.

Employers should consider that if an adverse employment action is taken about the same time that an employee engages in protected activity, the proximity will create the impression that the protected activity was a motivating factor in the termination.

A lack of documentation is often the biggest problem when the employer tries to show that the termination was justified by legitimate business concerns. For example, if an employee’s performance has been lacking but the individual’s supervisor decided to document an “average” performance rating and simply tell the employee verbally about the performance problems, a future termination for poor performance will not be supported by the company’s documentation. That is why even verbal “warnings” as a step in progressive discipline should be documented. If that termination also occurred around the same time that the employee engaged in protected activity, the company could face a wrongful termination claim if verbal warnings regarding an employee’s performance were not documented.

The point is that an employee can’t simply file a generic wrongful termination claim and expect to win. Terminations may seem unfair to an employee without being unlawful.