Employers, Watch Out for These Illegal Reasons to Fire Someone!

Deciding to terminate employees is always a stressful and awkward thing to do for hiring managers. Not only do HRs have to deal with the uncomfortable “you are fired” conversation, they also greatly worry about the now-vacant position. Most employers feel the need to be fast in terminating an employee, so that they can quickly open a new recruitment or refer someone to fill in the role. 

However, it is best for hiring managers to take the process of terminating an employee extremely carefully. It is crucial to make sure that the reason behind the termination is not simply valid from the company’s point-of-view, but also legal according to the law and public policy. An illegal termination can cause fired former employees to file a lawsuit against you and your company - this is something we entirely want to avoid!

Let’s start by understanding the definition of a wrongful termination, and then we’ll see what are illegal reasons to terminate an employee.

A wrongful termination is when a hiring manager terminates an employee with a reason that violates the law or public policy. In short, a wrongful termination can be understood as firing an employee for an illegal reason. 

An unlawful termination of employment can encourage your fired employee to seek litigation by filing a lawsuit against you and your company in court. This can cost you a lot of legal fees and financial damages - it is best to avoid, thus, prevent it. 

There are a few unfair dismissal reasons that are protected legally - let’s see what they are!

Firing employees because of their sexual orientation or gender identity is legally wrong based on several state laws. A termination for sexual orientation is considered a discriminative unlawful termination.

Let’s see a case example:

In this case, because protected by his state’s law and policy, Jacob can file a lawsuit against the company for a wrongful dismissal for sexual orientation.

Similar to a wrongful termination for sexual orientation, a firing because of marital status is also considered as a discriminative illegal dismissal. Many laws prohibit employment dismissals due to marital status, as well as a termination because an employee is pregnant or has recently given birth. 

Let’s see an example:

Protected by federal and state laws, Emily is legally allowed to file a lawsuit against her company for getting wrongfully discharged merely because of her marital status.

As mentioned before, an employment termination for pregnancy or childbirth-related medical conditions is also considered an unjust termination. Parents with this massive period of change should be supported, or at least accepted, from the company’s end. 

Let’s see another example:

Jessica can file a lawsuit against the company because she has been unfairly fired because of her childbirth.

Retaliation refers to a ‘counter-attack’ or ‘revenge’ employers perform when employees report on them (or take any action against the employee or institution) for the employers’ wrongdoings. Retaliation can look in many different forms:

• Employment termination 
• Position transfer (downwards)
• Undesirable & unfair treatment at work

Firing someone for retaliation is also a wrongful and unfair termination. Employers should carry themselves professionally and deal with reports on them fairly (without taking it personally). 

Let’s see a case example:

Poppy found the situation unfair, and described to the HR department on how her manager has been treating her ever since she reported on her manager. In this example, Poppy’s manager wrongfully fired Poppy because she reported her manager. Poppy can report on the case because she has been terminated for false accusations.

As long as your employee has a legal or valid work permit for employment, you cannot terminate non-citizens employees merely because of their ‘Alien status’. Dismissing an employee for their citizenship or being a non-citizen is considered a discriminatory unlawful dismissal. 

Here is an example:

In this case, Karen could file a complaint against her manager for wrongfully dismissing her because of being a non citizen.

Forcing and threatening an employee to take a lie detector test itself is already considered illegal in some states. Except for several medical and security industry positions, firing an employee if they refused to take a lie detector test, is therefore considered an unlawful firing. 

Let’s see an example:

Timothy is legally allowed to file a complaint against his company because his termination is a wrongful termination of contract.

When managers plan to benefit themselves or the company by executing illegal acts, at times, they would ask their employees to also take part in committing the crime. Obedient employees would refuse to commit illegal acts, and if their employers terminate them because of this reason, the termination will be considered an illegal termination.

Examples of illegal acts in the office can look like the following:

• Falsifying data
• Lying to government auditors, tax staff, etc. 
• Publishing manipulated information 
• Etc.

We can see an example of this below:

In this case, Michelle was wrongfully discharged because she refused to commit an illegal action.

Whistleblowing refers to reporting on something you’ve seen at work that is improper or incorrect. Employees are legally allowed to complain, even report, about work conditions that do not meet the mandated health and safety standard that has been set for most offices. It is illegal for employers to fire an employee who reports or complains about these conditions that aren’t healthily met. 

Let’s see another example:

Justin can find out more about the case, as there is a big chance that this might be a wrongful termination of employment for whistleblowing.

If you’ve written detailed specifications about termination in your employment contract, make sure to refer to it before deciding to terminate an employee! If you terminate an employee with a reason that is stated to be one of the reasons for which they will not be fired for, your termination will be considered as an unfair termination of employment.

Here is another example:

Josh can file a lawsuit against the company for violating employment contracts. Josh’s HR dismissed him for a reason that is stated in his contract as a reason for which he will not be dismissed for.

Illegal employee termination can also be caused by terminating an employee for exercising a legal right. A legal right is for everyone to have, and therefore, a company or manager can never take a legal right from an individual. 

Below are examples of legal rights:

• Voting
• Taking family leave
• Medical leave

If an employee is terminated because of taking leave to exercise these legal rights, they are considered to be wrongfully laid off by their employer. 

Let’s see the last example:

Benedict could complain that he has been unfairly fired for voting, which is a legal right.

Key Takeaways

• HR managers and department managers should understand that there are illegal reasons to fire someone. 
• Illegal reasons to fire someone are discrimination, retaliation, refusing to commit an illegal act, refusing to take a lie detector test, violating employment contract and exercising a legal right.

--- Originally written by Lorencia Ang Budijono ---