Employees: Job Termination Rights FAQs

• What topics may be discussed if my boss wants a meeting to investigate problems at my job? Am I entitled to have someone attend the meeting with me?

• Are there ever any exceptions to being an employee at will?
• How much unemployment benefits can I collect?

• What can I do if I think a former employer has blacklisted me?

• I was recently fired from my job. I never received any warnings and got good performance reviews. Was this a wrongful termination?

• Is my employer required to give me a reason for firing me?

• Can my employer deny my unemployment benefits?

• Can my employer hold my final paycheck until I return company equipment?

• What can my former employer say when giving a reference?

• What does "at will" mean?
• What is constructive discharge?

• What is promissory estoppel as it relates to at-will employment?

• What is public policy as it relates to at will employment?

• What kind of employment rights do I have during my probationary period?

• When must my employer give me my final paycheck?

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Q: What topics may be discussed if my boss wants a meeting to investigate problems at my job? Am I entitled to have someone attend the meeting with me?

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• A: Your employer can call a meeting to investigate any number of issues. Your boss can ask questions about thefts, accidents, property damage, absences, poor work, and rule violations. Sometimes these meetings lead to disciplinary action, like a suspension, or even being fired.

  You must go to the meeting, but you have the right to ask someone to go with you if you believe the meeting may result in discipline. This right to representation is called "Weingarten rights." It covers all employees, with a few exceptions. Have a union representative (if applicable) or a coworker attend the meeting to give you support and help explain your side of the issues.

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Q: Are there ever any exceptions to being an employee at will?

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• A: Employment "at will" generally means your employer can let you go from your job at anytime for any reason, or for no reason. There are three major exceptions to employment at will. An employer can't fire you if:
  • It would violate state public policy
  • For example, an employer can't fire you for refusing to do something illegal.
  • There's an express or an implied contract for employment
  • An "express" contract is one that both parties mean to make, and it's usually in writing and signed. An implied contract can be created if your employers tells you, orally or in writing, that you'll keep working for a certain length of time or that you'll be fired only for certain reasons. Sometimes implied contracts are created by employer handbooks or job offers.
  • It would violate an implied promise of good faith and fair dealing
  • In some states this requirement means terminations must be for a good reason or they can't be made in bad faith. For example, an employer can't fire you solely to avoid paying you a commission that you had earned.

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Q: How much unemployment benefits can I collect?

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• A: Generally, your benefits are based on a percentage of what you earned over a recent 52-week period. Benefits are paid for a maximum of 26 weeks in most states. Unemployment benefits are generally given only if you register at a state unemployment office, don't have a job, and keep trying to get a job

  An additional 13 weeks of extended benefits may be available during times of high unemployment. Some states pay up to 7 more weeks (20 weeks maximum) of extended benefits during periods of extremely high unemployment.

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Q: What can I do if I think a former employer has blacklisted me?

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• A: Blacklisting is when your name is included on a list of "undesirable" employees. The list is given to potential employers in a certain area or industry. You may be included on the list if you did something an employer didn't like, such as steal from the company or often not show up for work.

  State laws prohibit blacklisting. It can be difficult to prove an employer blacklisted you. If you can prove it, you may get punitive damages, which is a money award designed to punish your employer. You may want to contact an experienced employment law attorney to discuss your situation.

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Q: I was recently fired from my job. I never received any warnings and got good performance reviews. Was this a wrongful termination?

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• A: That depends entirely upon the reason you were fired. Employers don't need to give you warnings.

  The vast majority of employees in the US are "at will" employees. Such employment may be ended by either party, without notice, and for any reason so long as the reason isn't illegal.

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Q: Is my employer required to give me a reason for firing me?

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• A: In some states employers must tell you why you were fired, but you may need to give your employer a written request before they have to give you one. In other states employers don't need to tell you why they fired you. You should check the laws in your area for more details.

  You should be suspicious if you weren't told the reason for your termination. If this happens, you should consider talking to an attorney.

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Q: Can my employer deny my unemployment benefits?

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• A: Your employer can protest your unemployment benefits but can't deny them. The state unemployment office, not your employer, makes the decision about whether you receive benefits. You or your employer may appeal or "challenge" that agency's decision, though.

  Generally, you're eligible for unemployment compensation if you were dismissed for any reason other than for misconduct. If you leave voluntarily, you aren't eligible unless you leave for "good cause."  Quitting work because you are sick or because your paychecks bounce are examples of quitting a job for good cause.

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Q: Can my employer hold my final paycheck until I return company equipment?

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• A: In most states an employer can't withhold your final paycheck until company property is returned. Your employer may be able to deduct an amount from your final paycheck for unreturned equipment if you give it written permission to make that deduction. Contact you state's Department of Labor for specific information.

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Q: What can my former employer say when giving a reference?

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• A: Your former employer may say anything he wants about you as long as it's factually true or a legitimate opinion. He can't say you were fired for stealing if in fact you resigned or quit. He can say he wasn't satisfied with your work if it's true. The majority of employers don't give more than titles, dates of employment, and rate of pay because it's safer to say as little as possible.

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Q: What does "at will" mean?

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• A: It means you don't have an employment contract. You're employed at the will of your employer for as little or as long as your employer wishes. It also means you're free to stop working for your employer at any time.

  An employer doesn't need to give a reason for termination of an "at will" employee, as long as the termination isn't unlawful or discriminatory (based on age, gender, race, religion, national origin or disability). Termination can be due to a merger, workforce reduction, change in company direction and business focus, poor company performance, or any number of other legitimate reasons.

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Q: What is constructive discharge?

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• A: It's when you find your employer has created intolerable working conditions and refuses to address the issues, resulting in your feeling forced to quit or resign. You may be able to sue for constructive discharge and apply for unemployment benefits.

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Q: What is promissory estoppel as it relates to at-will employment?

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• A: It is one of the exceptions to at-will employment. To prove promissory estoppel, you must show:
  • Your employer made a clear promise to employ you for a specific time period
  • You relied on the promise
  • Your reliance was reasonable and foreseeable, and 
  • You were injured as a result

  An employment law attorney can help you determine whether your particular situation fits the promissory estoppel mold.

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Q: What is public policy as it relates to at will employment?

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• A: Public policy is generally set by each state's law and relates to policy that's focused on the best interests of the general public. Usually, under state public policy, an employer can't fire you:
  • Because you refuse to perform an act prohibited by state law
  • For reporting a violation of the law, or "whistleblowing" 
  • For engaging in acts that public policy encourages (for example, not allowing leave for National Guard activities)
  • For exercising a legal right (for example, firing you because you file a worker's compensation claim)

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Q: What kind of employment rights do I have during my probationary period?

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• A: Not many. You must successfully pass the trial or "probationary" period of employment to earn the rights held by non-probationary employees.

  Probationary employees can normally be discharged at any time within the probationary period with no right to appeal or "fight" the termination. Normally there's no entitlement or "right" to continued employment, even in the civil service arena.

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Q: When must my employer give me my final paycheck?

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• A: The time limit for when your employer must give you your final paycheck depends on the laws in your state. Those laws may vary depending on whether your leaving was voluntary or involuntary. Generally, you must receive your check on your last day or on the next regular payday. Check with your state's Department of Labor for specific guidelines.

  If the regular payday for the last pay period you worked has passed and you haven't been paid, contact the Department of Labor's Wage and Hour Division or your state labor department.