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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 usually needs to show some reason that the termination was wrongful, such as a violation of law or public policy.
For example, an employee who was terminated shortly after taking leave under the Family and Medical Leave Act 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.
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 a claim, the termination might appear to be connected to the claim, and therefore “wrongful.”
Employers can still terminate employees who have engaged in protected activity (like filing an injury claim, taking FMLA, making a discrimination complaint, or filing a claim for unpaid overtime). However, the company needs to show that the termination was justified by other valid reasons. The fact is that if an adverse employment action is taken about the same time that an employee engages in protected activity, the proximity may create the impression that one event (the protected activity) caused the other (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 would not be supported by the company’s documentation. If that termination also occurred around the same time that the employee engaged in protected activity, the company could face a wrongful termination claim.
The point is that employees can’t simply file a generic “wrongful termination” claim and expect to win their case. They must show that the company violated some law, public policy, or other rights of the employee. Even in such cases, however, the company can prevail if the documentation or other evidence shows that the employee would have been fired for other legitimate reasons, whether or not the employee engaged in protected activity.