Labor and Employment

Getting the Ax

You've just been fired. What do you do?

One thought that may rise through the anger is, "I'm gonna sue!" Usually, though, calmer heads prevail on both sides and lawsuits are avoided.

First, assess your situation. While you shouldn't ignore your rights, you also shouldn't make rash decisions. Try to set your emotions aside and calmly and objectively think about the facts and circumstances surrounding your unexpected unemployment.

Maybe you weren't given a reason for being fired. If you were, it should be carefully documented. Hopefully, you received something in writing from your employer. If not, write down what you were told while your memory is fresh.

If your employer didn't to give you a reason, it doesn't necessarily mean that the employer acted wrongfully. The general rule is that employment is on an "at will" basis, meaning that either the employer or the employee can terminate the work arrangement at any time, for any reason. So if you weren't told why you were fired, the employer may be taking the position that your employment was "at will." That may not be the case, however, so you should still document the facts and circumstances of your termination.

Take Out the Emotions

It's important to be objective - get just the facts down on paper. This helps put things into perspective and will help if you later decide to have an attorney evaluate your case. An accurate summary of what happened while it's still fresh in your mind could be helpful down the road.

Other details may be important. Make a note about how you were terminated - in person, by a "pink slip," in the presence of co-workers. Record who terminated you, and where and when it happened. Names, dates and places could be important to someone reviewing the case.

You should look at your financial situation immediately. If you're living paycheck to paycheck, it's especially important to apply for unemployment benefits. You should also ask about extending benefits you had at work, such as health care, which can often be continued under an employer's health plan. Hopefully, your employer paid you your final check and anything else due, including accrued vacation pay. Take responsibility on following through on these. Don't rely on anyone else doing it for you.

Information in or absent from your personnel file could be important. A fired employee may very well ask for a copy of his or her personnel file. However, this doesn't mean one will be provided. The laws in your area may or may not give you the right to get a copy of your personnel file. Some state laws, for example, give you the right to review your personnel file but not the right to photocopy it. Employers sometimes rely on this distinction to deny terminated employees access to their records.

Ultimately, though, if you file a lawsuit against your employer, it usually can be forced to turn over your records in the pretrial process known as "discovery." So if you're denied access to your records, the better course of action is to remain cordial. Do take notes on the employer's excuse for not turning them over. Making threats or being nasty can only hurt you later if you pursue the matter.

Life Goes On

After getting fired, first think long and hard about whether you should simply get on with your life rather than filing a lawsuit. First, get another job. Then mull your options. Asking others for advice can help, but beware that friends and family are there to console you and usually won't be objective. Consider talking with more disinterested parties who can give you an unbiased and honest take on your situation.

Think about how you've been damaged. Sure, your feelings have been hurt and you're angry, but that doesn't necessarily translate into legal damages. Any damages start with lost wages and benefits as a result of being fired. You have an obligation to "mitigate" your damages, that is, look for another job. If you land another job with comparable pay and benefits, it may make sense to forget about getting fired and move on.

If you think discrimination is a factor, there are federal and state laws in your favor. Well-known examples include the bans on firing employees on the basis of their race, religion and sex. Other laws protect against age discrimination, which generally applies to persons over 40, and discrimination based on a disability.

But the anti-discrimination laws don't stop an employer from firing someone who's in a particular class or "protected status" mentioned in the anti-discrimination law, such as race, gender or disability. It just needs a good reason that's separate from the employee's protected status. For example, you can't be fired simply because you're disabled or have a handicap unless your employer first shows that it couldn't make a reasonable accommodation that would enable you to do the job. For example, if you have diabetes, a reasonable accommodation would be letting you take regular breaks for meals during your shift.

Getting fired can be tough to handle, but it's not the end of the world. Knowing what to do next can make coping a lot easier.

Questions for Your Attorney

  • Am I eligible for unemployment benefits, and if so, how much can I get and for how long?
  • I and several co-workers were laid off because, we think, the company wanted to move younger people into our jobs and pay them less. Can you represent all us if we decide to sue the company?
  • Along with my notice of termination and final paycheck, my employer asked me to sign a waiver stating that I wouldn't file any lawsuits against it based upon my being laid off. Should I sign it?

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