WRONGFUL DISCHARGE / ILLEGAL EMPLOYMENT TERMINATION
WRONGFUL DISCHARGE – ILLEGAL EMPLOYMENT TERMINATION LAWYER IN COLUMBIA, SC
Wrongful Discharge and “at will” employment.
“Wrongful discharge” is not a legal term but many people use it if they are terminated from their employment and they believe the termination was without good or just cause. In South Carolina, the underlying law or principal is that an employee without a contract for a term of years (any length of time) is an “at will” employee. The vast majority of employees are “at will” employees. At-will employees have a contract of employment but that contract is construed to be terminable at the will of the employee or the employer. Therefore, there is no contractual right to sue for damages if you are discharged wrongfully as one can be discharged for any reason or no reason. The term “right to work” relates only to the right of employees to decline joining a union or paying union dues and is not related to the at-will doctrine. Although the basic rule is that there can be no contractual lawsuit if you are a true “at will” employee, there are many exceptions to this underlying principal.
There are many exceptions to the “at-will” rule.
State Employees: Most state employees are not at will depending on the Agency, employment status and time with the State. State employees if they are terminated have grievance rights. The initial process begins with the specific Agency or Department. Each Agency will have differing processes. If the Agency grievance procedure does not resolve the issue, the employee has a right to a Grievance Hearing through the State’s Human Resources Director. A Grievance Board will the act as the arbitrator and make a determination.
In private employment, there are many exceptions to the “at will” employment rule and most of them involve whether or not an illegal motivation, rather than the employee’s performance, actually lead to the termination. There are too many exceptions to list all of them but some of the more common exceptions are as follows:
–– if the termination would or did violate statutory laws the discrimination laws such as Title VII or the ADEA (AGE discrimination), ADA (Disability discrimination) and many other Statutes, labor laws, whistleblowing, and the like including anti-retaliation provisions within statutes or regulations.
– if there is an implied or express contractual agreement;
– if the employee has provided “independent consideration” for the employment;
– if there was a policy given to the employee in writing (including in a handbook) which is not legally disclaimed and provides mandatory language which was violated.
– if the discharge or the termination violated a clear mandate of public policy.
Written or even verbal promises to employees may sometimes be enforceable and may counter the legal position that the employer has reserved the right to terminate an employee’s position at will. Without speaking with an attorney knowledgeable in this area, it would be difficult to determine if one had a potential cause of action based on a promise made by an employer. Examples are stated levels of progressive discipline or terminable offenses that were not followed.
The presumption that an employee may be terminated at will does not apply if the employee provided something of value (legal consideration) in addition to the services rendered. For example, if the employee sold or abandoned an established business to join the employer, he or she may be able to argue against the presumption of at-will employment.
Finally, statutes from the Federal and State Government disallow employers to terminate employees for reasons which have been made illegal. These laws supersede or override the common law principal of “at will” employment.
Typical examples are the discrimination and general labor or employee benefit laws in conjunction with anti-retaliation provisions as well as other laws that protect employees from making both internal and external complaints of wrongdoing (i.e. the general understanding of the term “whistle blowing”).
Public Policy Exception to the At-Will Rule:
South Carolina recognizes a “public policy” exception, which precludes employers from firing employees if the reason for doing so violates a clear mandate of public policy. Unfortunately, it is difficult to define without specific facts what situations may fall into this category. Courts do not determine that just because a reason for discharge was unethical or morally wrong the at-will relationship does not still exist. A terminated employee generally must give evidence that he or she was legally required to do an illegal or highly unethical act or be discharged or that there is a specific law prohibiting the employer from terminating or discharging the employee for the reason the evidence shows was the reason for the discharge.
WHAT IS MY EMPLOYMENT CASE WORTH / CASE VALUE?
The damages available in Title VII employment or any discrimination case vary greatly from case to case. Obviously, an attorney can estimate a potential range of value once most or all of the facts are collected. In addition to this, discrimination laws specify what kind of damages are allowed and many areas are capped. Generally, one who prevails on the liability side of the case, in other words the fact finder or jury determines that discrimination did exist and caused an adverse employment action, you are generally entitled to the wages you have lost and sometimes reinstatement or forward looking pay. All this is subtracted from what you actually made after the termination or other negative employment action. Compensatory damages are many times allowed and sometimes (against private employers) punitive damages. Sometimes, depending on the facts, you will not be entitled to recover compensatory (emotional distress) or punitive damages. In cases where compensatory and punitive damages are available, there are statutory caps on these damages which vary depending on the number of employees your employer has. If the employee prevails at trial, attorneys’ fees are usually recoverable.
Employment discrimination lawsuits are some of the most difficult lawsuits to win and obtain sufficient relief for the client. They require a great deal of attorney time and the employer usually contests them regardless of the cost. Almost all employers will, prior to a trial, motion a court for summary judgment. This motion asks the Court to dismiss the case or limit it and most employer are able to prevail in these motions. Courts can dismiss or limit the case based on the facts even if discriminatory intent is evidenced.
HOW CAN WE HELP?
Charles (Chuck) Ormond and Ben Dunn together have over forty (40) years of experience in employment and labor issues and litigation. The Firm’s attorneys have settled dozens of employment termination cases over the last fifteen years many with high five figure and some six figure resolutions. Both partners have experience representing both employees and employers and, this background, assists them in resolving employment cases justly on either side of the case. Once a case is evaluated, and if the facts create a case which can be filed in Court, you will have both attorneys working for you. The Firm does accept employment cases where the legal fees are on a contingency basis and will meet with you for a one half hour initial consult for $50.00 in order to determine if you have a valid employment case or give legal advice regarding an employment matter.
