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Wrongful Termination Defense for Employers
What “Wrongful Termination” Means
Most employment relationships are at-will. That means either the employer or the employee can end the relationship at any time, and usually without advance notice or explanation. However, this broad discretion is not boundless. A termination becomes wrongful if it is based on a protected trait, if it punishes an employee for exercising workplace rights, if it violates public policy, or if it breaks the terms of an employment contract or a written company policy on discipline and termination.
Employers facing wrongful termination disputes can work with the employer defense attorneys at Conn Maciel Carey, LLP to develop a defense that protects the business.
Types of Wrongful Termination Claims
Wrongful termination disputes fall into four main categories: discrimination, retaliation, violations of public policy, and breach of contract.
1. Discrimination
Discrimination claims are among the most common wrongful termination lawsuits. Sometimes employees claim that they were fired because of their race, sex, age, disability, or because they fall under some other protected category. Discrimination claims tend to rely on comparisons showing that employees outside the protected group kept their jobs, even though their performance problems matched those of the terminated employee. Discrimination claims can also rest on biased remarks made by managers or abrupt changes in performance evaluations after an employee disclosed they suffer from a medical condition requiring an accommodation.
2. Retaliation
Employees may claim retaliation when a termination follows a wage complaint, a safety report, a harassment charge, or a request for protected leave, such as termination after FMLA is exhausted. Retaliation claims usually point to timing, with employees arguing that they were fired as punishment because the termination came right after they asserted a workplace right.
3. Violations of Public Policy
An employee can bring a wrongful termination claim if their employer fires them for a reason that conflicts with public policy. Public policy claims are based on the principle that employees should not lose their jobs for refusing to break the law or for fulfilling a legal obligation. A public policy claim might be based on an employee who was fired after refusing to commit an illegal act, reporting a legal or safety violation, or missing work to report for jury duty.
4. Breach of Contract or Enforceable Policies
A wrongful termination claim can also stem from a written agreement or from company policies that restrict an employer’s ability to fire at will. Employees may argue that an offer letter, individual contract, or handbook provision created binding promises about job security or required the employer to take certain steps before firing them. Handbook, offer, or policy language that creates a reasonable expectation the company will honor it can operate as a contract term, even if the company never intended to limit at-will discretion.
Administrative Investigations Employers See Before Lawsuits
Employees who believe they were fired unlawfully usually start by filing a charge with a state or federal agency. In fact, federal law requires this step before an employee can bring a lawsuit under Title VII, the ADA, or the ADEA. After the charge is filed, the agency notifies the employer within about 10 days and begins its process of requesting documents and written responses, and conducting on site investigations. If the agency decides not to pursue the charge, it issues a Notice of Right to Sue and the former employee can file a lawsuit on their own. If the agency does pursue the charge, it may try to settle the case without going to court or, in some situations, bring the lawsuit itself.
Types of Administrative Investigations
Wrongful termination disputes can trigger investigations by different government agencies, depending on the claim. Each agency has its own process and focus.
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EEOC or State Fair Employment Agencies: Handle discrimination and retaliation charges under laws like Title VII, the ADA, and the ADEA. Employers are expected to provide a position statement and respond to requests for documents or interviews.
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Department of Labor (DOL): Reviews complaints tied to wages, hours, or retaliation under the FLSA and related statutes. Investigators commonly request payroll records, time sheets, and employee schedules.
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OSHA: Investigates retaliation claims linked to workplace safety complaints or whistleblower protections. Investigators interview employees and managers and review safety policies and prior complaints.
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NLRB: Handles claims involving union activity or concerted action by employees. Investigators review communications, policies, and disciplinary actions to determine whether the employer interfered with protected activity.
Responding to an Administrative Investigation
When a government organization opens an investigation into a potential wrongful termination, it examines whether the employer’s stated reason for firing the employee holds up under scrutiny. The employer’s response becomes part of the official record, so employers need to write every statement with the expectation that lawyers and judges will review it later. Employers should give one clear explanation for why the employee was fired and support it with dated records like performance reviews, attendance logs, and disciplinary notes. Adding new reasons or shifting explanations creates the appearance of pretext and strengthens the employee’s claim.
Defending Wrongful Termination Claims
Discrimination
Employees bring discrimination claims when they believe they were fired because of a protected trait like race, sex, age, or disability. Employers defend against discrimination claims by showing that the decision was not connected to the employee’s protected status. A strong defense relies on dated records, including performance reviews, attendance logs, and disciplinary notes, that demonstrate consistent enforcement of standards across the workforce.
Example:
A sales associate files a wrongful termination lawsuit alleging that he was fired because he has epilepsy. His claim rests on the fact that he told his supervisor about his diagnosis on June 1st and was fired on June 15th. In his complaint, he argues that the two events are connected and that the short time between them proves that his termination was based on his medical condition. He also names a younger coworker who made more sales errors than him, but kept his job.
Defense:
The employer defends itself by pointing to documents created months before the employee mentioned epilepsy. The documentation showed that the employer had issued the employee a written performance improvement plan in January that set sales targets and required monthly progress meetings. The documentation also showed that between January and June, the employee failed to meet any of his targets, and didn’t show up to half of the mandatory progress meetings. Those dated records show that performance concerns were well established months before the employee disclosed epilepsy on June 1.
The employer also reviewed personnel records for the younger coworker named in the former employee’s complaint, which showed higher sales results and no prior discipline. That comparison undercuts the allegation that age or disability played any role in the firing.
Retaliation
Employees bring retaliation claims when they believe they were fired as punishment for exercising a workplace right, like filing a wage complaint, reporting a safety hazard, submitting a harassment charge, or requesting protected leave.
Example:
A warehouse worker alleged retaliation after being fired two weeks after submitting a written complaint to OSHA about unsafe forklift practices. He argued that the timing showed his termination was punishment for raising a safety concern. As evidence, he cited his March 1 complaint and the termination letter dated March 15. He also produced text messages from his supervisor telling him to “stop causing problems” about safety rules.
Defense:
The employer defended by explaining that the former employee had documented attendance issues well before he filed the complaint with OSHA. The employers records showed that between December and February, multiple supervisors gave the worker three written warnings for unexcused absences, and the time logs confirmed the missed shifts on those dates, as well. The employer also presented records of another warehouse employee with the same attendance history who was fired in March, even though he had not filed a safety complaint. That comparison demonstrated that the termination decision was tied to attendance issues rather than retaliation for raising safety concerns.
Breach of Contract or Enforceable Policies
Employees bring breach of contract claims when they believe that a written agreement or a company policy created binding promises that limited the employer’s right to fire them.
Example:
An account manager filed a wrongful termination suit based on breach of contract after being fired without receiving progressive discipline. In her complaint, she pointed to the company handbook, which stated that employees would receive a verbal warning, a written warning, and then a suspension before the employer would ultimately fire them. She argued that those steps created a contractual obligation, and the employer broke that obligation by firing her after only giving her one verbal warning.
Defense:
The employer defended by showing that the handbook included an at-will disclaimer signed by the account manager when she was hired. That disclaimer stated that nothing in the handbook created a binding contract and that employment could end at any time. The employer also presented evidence that the handbook gave managers discretion to bypass progressive discipline for serious issues, and the account manager’s record included multiple client complaints about mishandled accounts. Those records demonstrated that the company’s policies did not guarantee progressive discipline and that the termination was consistent with the written rules.
Violations of Public Policy
Employees bring public policy claims when they believe they were fired for refusing to break the law, reporting illegal conduct, or fulfilling a civic duty like jury service.
Example:
A bookkeeper alleged wrongful termination after refusing her manager’s request to alter financial records before a tax audit. She presented as evidence an email from the manager instructing her to “adjust the numbers so they look better,” and she testified that she declined to carry out his request. Two weeks later, she was fired. In her complaint, she argued that the termination was intended to be punishment her for refusing to commit an illegal act.
Defense:
The employer defended by presenting emails and meeting notes created months before the audit that showed ongoing concerns about the bookkeeper’s performance. Payroll records revealed repeated mistakes in wage calculations and client invoices that led to complaints from both employees and customers. The employer also provided testimony from a different manager who made the termination decision and who had no involvement in the request to alter records. That evidence demonstrated that the firing was tied to documented performance problems, not the refusal to falsify financial information.
Practical Measures to Avoid Wrongful Termination Disputes
Creating and Enforcing Clear, Consistent Policies
The best way for employers to reduce the risk of wrongful termination claims is by creating and enforcing clear, consistent policies. Employers should review handbooks and offer letters to confirm that at-will language is included and that no provisions accidentally guarantee job security or progressive discipline. Every employee should understand the standards for performance and behavior, and those standards should be applied evenly across the workplace. Employers who enforce policies unevenly open the door for fired employees argue that a stated reason for termination was a cover for discrimination or retaliation. For more on legitimate reasons to fire an employee, read Legitimate Reasons to Fire an Employee Without Exposing Your Company to Legal Risk.
Thorough Documentation
Employers build the strongest defense to wrongful termination claims when they record employee performance and conduct problems at the time they occur. Time-stamped performance reviews, attendance logs, and disciplinary notes create a timeline that could later support an employer’s stated reason for terminating an employee. Records that are created after an employee has already been fired look defensive and carry very little weight in an investigation or lawsuit. Being able to clearly link each record to a clear policy or performance expectation helps demonstrate that the decision rested on workplace standards rather than bias or retaliation.
Training Managers
Inadequately trained managers have the potential to shape an entire wrongful termination dispute. A stray remark about an employee’s age or medical condition can turn into the centerpiece of a discrimination claim. An email that criticizes an employee for filing a complaint or requesting leave can be used as evidence in a retaliation claim. Statements that suggest an employee illegally forge documentation can fuel a public policy claim. Even casual promises about job security or progressive discipline can be cited as evidence in a contract-based claim. Training managers to document performance with dates and facts, to reference policies consistently, and to avoid casual or speculative remarks reduces risk.
Seeking Legal Guidance When Unsure
Firing an employee soon after they file a complaint, request medical leave, or refuse to do something that might be illegal can create the appearance of retaliation or bias. Employers who move forward with firing an employee in those situations without legal review increase the risk that they will be accused of wrongful termination. Getting advice from counsel before acting helps employers choose a clear explanation, line it up with dated records, and avoid making statements that could be used as evidence of discrimination or retaliation.
Arbitration vs. Court for Termination Disputes
Some wrongful termination disputes are decided in arbitration, rather than court. Arbitration hearings are not part of the public record, so details about the claim, the evidence, and the decision stay confidential. Arbitration also moves faster than court, which disrupts business operations less than a court case would. The process also limits discovery, so employers do not have to turn over as many records or sit through as many depositions. The drawback of arbitration is that employers are responsible for the arbitrator’s fees, which can reach thousands of dollars, and they have little chance to appeal if the outcome is not in their favor.
Court cases, by contrast, move more slowly and require broader discovery, where former employees can request hundreds of documents, all of which could become public record. However, judges and juries decide the outcome, and employers have more tools to challenge weak claims through motions and appeals. Employers that use arbitration agreements should review them regularly to confirm they are enforceable and to decide whether arbitration still fits their goals.
Settlement Terms That Protect Businesses
Most wrongful termination disputes end in settlement rather than a trial. Employers that settle should focus on terms that protect the business going forward, not just the payment amount. A proper settlement agreement should state that the employee gives up the right to bring any further claims tied to their employment or separation. Confidentiality and non-disparagement provisions also carry value, since they prevent the details of the dispute from becoming public and protect the company’s reputation.
A no-rehire clause is another tool employers use in settlements. It states that the former employee will not apply for or accept future employment with the company. Employers use these clauses to avoid the risk of a former employee returning and creating new conflict, but the language needs to be written carefully because some states restrict how broadly it can be enforced.
Employers should always retain experienced legal counsel to review the agreement before signing to make sure that the settlement resolves the dispute and reduces the risk of future conflict.
Next Steps for Your Wrongful Termination Defense
Wrongful termination claims put employers at risk when records are weak, policies are uneven, or managers make careless statements. Employers protect themselves by documenting issues as they occur, applying policies consistently, and reviewing contracts and handbooks for language that could be read as binding promises. Involving counsel early can help employers frame their reasoning for a termination, avoid practical missteps, and reach agreements that resolve the issue without potentially creating new risks.
Need a defense to a wrongful termination case or agency charge? If your company needs a defense, contact The national labor and employment group of Conn Maciel Carey, LLP at (202) 715-6244 for a focused review of the separation decision and core records, an exposure map, and an evidence-driven plan with a clear timeline.
This article is for informational purposes only and does not constitute legal advice. While we strive to ensure accuracy, laws and regulations may change, and unintended errors may occur. This content may not address every aspect of the relevant legal requirements. For guidance on your specific situation, consult your attorney.