Labor and Employment

Job Termination Rights FAQ for Employees

By Sachi Barreiro, Attorney, University of San Francisco School of Law
Learn about your rights and your employer's responsibilities regarding references, your final paycheck, and more.

Q: My employer is conducting a workplace investigation into misconduct, and my boss wants to meet with me. What are my rights?

A: Your employer is entitled to—and may even be obligated to—investigate acts of wrongdoing in the workplace. For example, your employer may conduct an investigation into thefts, workplace accidents, property damage, or discrimination or harassment. While your employer can’t force you to cooperate or sit down in a meeting, you might be putting your job at risk by refusing to participate.

Union employees have special rights in these circumstances. If you’re a union employee, you have the right to have a union representative present at any meeting that might result in disciplinary action. These are called “Weingarten rights.” For example, if your employer is investigating a cash register shortage and you were on-duty when the shortage occurred, you can reasonably expect to be a potential suspect who might be disciplined or fired. If your employer asks you for a sit down to discuss the issue, you can ask to postpone the meeting until you can have a union representative attend.

Q: When is someone not an at-will employee?

A: In almost every state, the general rule is that employees work at will. This means the employee can quit at any time for any reason, and the employer can fire the employee at any time for any reason (as long as the reason is not illegal). Montana is the only state without a default at-will employment rule; in Montana, employees cannot be fired without cause once they complete a probationary period of employment.

Employees do not work at will when they have employment contracts promising them employment for a set period of time. Employment contracts can be formed in three ways:

  • Written contracts. In every state, a written agreement between an employer and employee is enforceable. Employment contracts usually state how long the employee will be employed for (for example, one year), what salary and benefits the employee will receive, and what specific reasons can lead to the employee’s termination.
  • Oral contracts. Oral contracts are also allowed in every state. Like a written contract, an oral contract includes terms about the duration of employment, compensation, and reasons for termination. However, the agreement is spoken between the employee and a representative of the employer, rather than written down.
  • Implied contracts. Many states will also uphold implied contracts. These types of contracts do not involve express promises from the employer, but instead are implied from the employer’s words or actions. For example, you may have an implied contract if your boss says “you’ll continue to have a job as long as you do good work,” or your employee handbook says that employees will be fired only for certain types of misconduct.

Q: Can an at-will employee be fired for any reason?

A: At-will employees cannot be fired for illegal reasons. For example, federal antidiscrimination laws prohibit employers from firing employees based on race, color, national origin, sex, pregnancy, religion, age (40 and older), disability, and genetic information. State laws may protect additional characteristics, such as sexual orientation or gender identity. Employees cannot be fired in retaliation for exercising their rights under these laws, either.

Federal and state laws protect employees in several other ways. For example, it’s generally illegal to fire an employee for filing a workers’ compensation claim, making a wage and hour complaint, or reporting a workplace health and safety violation. Many states also have a catch-all provision, which prohibits employers from firing employees for any reason that would violate public policy.

Q: How much can I collect in unemployment benefits?

A: Each state has its own unemployment rules regarding eligibility and benefit amounts. In general, though, benefits are based on your average earnings during a 12-month stretch called the “base period.” Most states have a maximum weekly amount that workers can receive. Benefits are paid for a maximum of 26 weeks in most states. To learn the rules in your state, select it from the list at Collecting Unemployment Benefits.

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

A: Blacklisting is when your name is included on a list of "undesirable" employees. Sometimes, employers maintain an actual list that is given to potential employers in a certain area or industry. Other times, employers may simply blacklist you by word of mouth, by telling fellow employers not to hire you.

Several states have passed laws to outlaw the practice of blacklisting. Some laws prohibit employers from creating, maintaining, or distributing a blacklist. Other laws prohibit employers from making false statements, or taking other inappropriate measures, to prevent an employee from getting a job. See State Laws on Blacklisting to learn the rules in your state.

Blacklisting is not the same as receiving a negative reference from your former employer. Employers are free to make truthful statements in response to reference requests. So if you were fired for stealing or not showing up to work, your former employer can tell your potential employer about it. If this leads to you not getting the job, you won’t be able to take legal action.

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

A: Your former employer can give its honest opinion about you and your time with the company, as long as it is based on statements of fact. If the employer lies about you, or speculates about something you did, you may have a defamation claim against your former employer. For example, your employer can’t say that you were fired for stealing, unless that is a verifiable fact (for example, you were caught on tape taking money from the cash register). Because this can be a tricky line to walk, many employers will only verify titles, dates of employment, and rates of pay in response to a reference request.

Q: I was recently fired from my job. I never received any warnings and got good performance reviews. Was I wrongfully terminated?

A: If you’re an at-will employee, your employer is not required to give you any advance notice or warnings before you’re fired. However, it does raise some red flags when employees are fired out of the blue, despite glowing performance reviews. In these cases, it may appear that the employer fired the employee for an illegal reason—which would lead to a wrongful termination claim. For example, if your employer hired a new manager who said he didn’t think women should work in sales, and the manager fires you three days later, you may have a claim that you were illegally discriminated against. You should consult with an employment lawyer if you have any doubts as to why you were fired.

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

A: Federal law does not require employers to give an employee a reason for his or her termination. However, some states have laws that require employers to provide the reason for termination upon request. This is called a “service letter” law. Employees in these states must typically submit a written request to the employer; the employer must then provide a letter with the reason for termination within a certain time frame.

Q: Can my employer deny my unemployment benefits?

A: Your employer can protest your unemployment benefits, but it can't deny them. The state unemployment office, not your employer, makes the decision about whether you are entitled to benefits. Once you submit your claim, your employer will have an opportunity to respond with reasons as to why you’re not eligible for benefits. These types of disputes usually revolve around whether you were at fault for your dismissal because you were fired for misconduct or quit without good cause.

Q: What is constructive discharge?

A: Constructive discharge occurs when you are forced to quit your job because of illegal working conditions that your employer refuses to correct. For example, if you’re subjected to harassment based on your religion and your employer does nothing to stop it over several weeks, you probably have a good claim for constructive discharge. In this case, you can sue your employer for wrongful termination, even though you technically quit your job. Most states would also allow you to collect unemployment benefits because you had good cause to quit your job. (For more information, see Constructive Discharge: Were You Forced to Quit Because of Intolerable Working Conditions?).

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

A: If you’re an at-will employee, a probationary period usually doesn’t give you any additional rights. This is because at-will employees can be fired at any time, for any reason that isn’t illegal. As long as the employer makes it clear that the probationary period doesn’t affect your at-will employment, you won’t have any rights to continued employment. Your employer can fire you during or after the probationary period, regardless of how well you perform.

However, in some states, you might have the right to continued employment if your employer doesn’t make it clear that you’re still an at-will employee. For example, some employees have argued—and won—cases by arguing that they became “permanent” employees once they completed the probationary period. For more information, see An Employee's Guide to Probationary Employment.

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

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. For example, in many states, you must receive your check on your last day if you are fired, or on the next regular payday if you quit. Check with your state's Department of Labor for specific guidelines.

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

A: No, your employer can't withhold your final paycheck until you return company property. However, your employer may be able to deduct the cost of the unreturned equipment from your paycheck, as long as that wouldn’t cause your wages to fall below minimum wage. Some states, however, have laws prohibiting these types of deductions from final paychecks. And, in other states, your employer can deduct the cost of the equipment, but only after receiving your written permission to do so. Contact you state's Department of Labor for the rules in your state.
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