Protecting Yourself from the Loss of Your Job
Most states have laws establishing employment as “at will.” This means that either party may terminate the agreement at any time, for any legal reason, provided there is not a written contract for employment. There are limitations on terminating an employee, and employees who have been terminated are granted certain rights under state and federal law. It’s important to know these rights and limitations and to understand the various methods of insuring yourself if you lose your job.
Wrongful Termination or Discharge
Even in an “at will” employment law state, you may be able to seek damages for wrongful-termination, based on the circumstances of your discharge. Generally, you cannot be fired in violation of law or of public policy. Your employer cannot terminate you in violation of the provisions of the Age Discrimination in Employment Act (ADEA), the Americans With Disabilities Act (ADA), or any other state or federal law prohibiting discrimination in employment. Plaintiffs have successfully alleged that they’ve been wrongfully fired when the following facts or circumstances were involved:
- Jury duty
- A whistleblower complaint
- Time off under the Family and Medical Leave Act
- Inadequate notice under the Worker Adjustment and Retraining Notification Act
- A breach of contract
- A violation of federal and/or state statutes forbidding employment discrimination
Information to Save When You’ve Been Fired
Regardless of whether you’re seeking a new job voluntarily or because your employment was terminated, copies of the following documents will help you- protect your future interests:
- A copy of the employee handbook.
- A copy of your employment contract, if applicable, previously signed and dated by both you and your employer.
- A written copy of your starting job description and an updated copy if it was modified before your departure.
- A written and signed statement about the reasons for your departure. This is important because it can determine:
- whether you’ll be granted unemployment benefits;
- what future employers will be told about the reason for your departure;
- which employee benefits you may be entitled to upon leaving, including health care coverage, accrued employee leave and funds deposited in a 401(k), pension or other program.
- Copies of all materials in your personnel file that your employer will release to you. If allowed, be sure to obtain documentation concerning:
- your paid wages,
- employee benefits,
- job evaluations,
- any signed statements made by your supervisors or co-workers,
- bonuses paid or promised.
- A copy of any termination or employment severance contract you signed. Try to refrain from signing one if you have questions that might be answered best by an attorney. You want to avoid unintentionally jeopardizing any of your future rights.
- A copy of any covenants not to compete. These include documents or contracts stating that you will not seek similar employment for a stated time period and will not compete in a specific manner for a set time period.
- Copies of any memos or e-mails sent to you or by you during your employment that your employer has not forbidden you to take under a claim of confidentiality. You may need an attorney to help you determine what you can and can’t take with you in this regard. Your goal is to protect yourself and have ample evidence to back up any of your future legal claims should your former employer try to deal unfairly with you.
State Labor Laws and Federal Government Protections
Federal law provides workers with basic rights upon termination:
The right to continue health insurance under the COBRA insurance program. Under COBRA, you may pay the entire cost of your health insurance under your former employer’s plan for approximately 18 months. The Health Insurance Portability and Accountability Act allows you to purchase individual coverage if no group health coverage is available and you have exhausted COBRA or other continuation coverage.
The right to receive any back pay still owed to you.
The right to receive your last paycheck in a timely manner. Many states will let your employer wait to pay you until the next scheduled payday if you leave voluntarily. Earlier payment is possible when your employer terminates your employment for reasons other than gross misconduct.
The right to receive certain 401(k) or pension funds owed or accrued. Federal law requires certain employers’ plans to pay retirement benefits no later than the time a participant reaches normal retirement age. But many plans, including 401(k) plans, allow earlier payments under certain circumstances.
You should look to your employment contract, employee handbook or state law to recover any accumulated sick leave, bonuses or vacation pay (assuming you are not a federal government employee with contractual rights). You might be able to negotiate a termination contract with your former employer that guarantees you some or all of your accrued benefits in exchange for a waiver of certain future rights. You may also have the right to apply for unemployment compensation.