Defending Against Wrongful Termination Claims: Strategies for Employers

California, like 48 other states, follows an at-will employment model. The lay understanding of this leads many to believe that employees can be terminated at any time for any reason or no reason at all. Employers who buy into this simplistic understanding are placing themselves at risk of a wrongful termination claim.

While employers in California do have considerable latitude in severing the employment relationship with employees, this discretion is not without limits.

Notably, employers may not unlawfully discriminate against employees when deciding to end their employment. This includes terminating employees based on their race, gender, nationality, disability, or sexual orientation, just to name a few.

Employees who feel unlawfully terminated can bring a wrongful termination claim and seek damages. For their part, employers should retain a skilled employment defense attorney to assist in responding to such claims and avoiding wrongful termination allegations from arising at all.

Wrongful Termination Claim: Elements and Damages

A wrongful termination claim brought by an employee against a former employer alleges that the former employer terminated the employee’s employment in violation of the law.

Typically, aggrieved former employees allege that their termination was an unlawful form of discrimination. However, whistleblowers and others may claim their terminations were illegal and unlawful.

If successful, a wrongful termination claim could give the employee back pay and benefits or result in reinstatement to their previous position. They could also recover compensation for any emotional distress they suffered, harm to their professional reputation, and their attorney’s fees.

The Best Defense Is a Solid Offense

Any employer can be the subject of a wrongful termination claim. The more proactive employers are about defending themselves against such claims, the more successful their efforts will be. This begins by implementing policies and procedures to reduce the likelihood that a termination will be perceived as being unlawful.

Employers should consider adopting policies that:

• Enact and enforce rules for behavior, attendance, and work performance
• Require regular employee review sessions
• Encourage documentation of interactions concerning employee work performance and other issues
• Ensure all employee discipline is meted out fairly, uniformly, and in accordance with policies

When it comes time to administer discipline, including termination, employers should be clear and direct. They need not provide the employee with a specific reason for the termination, but they should be able to back any stated reason with objective facts. Keep the conversation focused on the employee’s termination and what happens next.

Defending Against a Wrongful Termination Lawsuit

Because wrongful termination lawsuits can be filed with little forewarning to you, it is helpful to have an experienced employment defense attorney on hand who can get to work quickly on preparing your defense.

The sooner you take action to address the claim, the sooner the matter can be addressed and the less impact it will have on your business operations.
Your employment defense attorney may request that you:

Gather Any Documentation Regarding the Employee

First, your lawyer will want to know everything about the employee. This requires that you collect the employee’s file and any documentation regarding disciplinary incidents and job performance. Ensure you preserve any informal emails that may have been sent or received by supervisors or managers regarding the employee.

This step can take time, and potentially helpful and relevant documents and files could be misplaced or destroyed in the process. Work with your IT department to pause the automatic destruction or purging of electronic files and to efficiently search for relevant digital information.

Identify and Provide Guidance to Key Witnesses

Coworkers, supervisors, and management staff who may have been involved in supervising, disciplining, and terminating the employee should be identified. Disclose these individuals’ names to your employment defense attorney. Your lawyer should interview these witnesses as soon as possible to preserve their recollections.

In addition, these individuals should be instructed not to communicate with the employee or the employee’s attorney without first speaking with the company’s employment defense attorney. Finally, they should refrain from speaking with others within the company about the matter or disparaging the employee.

Timely and Appropriately Respond to the Claim

You have a limited time to file a response to wrongful termination claims. Failing to do so can lead to disastrous outcomes for your company. A default judgment could be entered against you, which is essentially the same as the court deciding the wrongful termination claim against you. In both situations, the employee obtains the relief and damages they request.

Responding inappropriately to the claim can also be risky. The statements and assertions you make in your response can later be used against you, including inadvertent admissions of fault. Again, your employment defense attorney can help ensure your response addresses the essential facts of the claim without providing extraneous or potentially damaging information.

Decide Whether to Settle or Litigate

When it comes to addressing a wrongful termination claim, you must decide whether to settle the claim with the employee or challenge it in court. Consider the strength of your case and the potential losses your company could face, including losses in productivity, morale, and professional standing.

Claims should be litigated where the employee has little to no evidence supporting their contentions. You may also choose to challenge the claim in court if there is evidence that the employee had performance or disciplinary issues and that their termination was handled in accordance with company policies.

Take Action on Wrongful Termination Claims

It may be tempting to dismiss a wrongful termination claim filed against you, especially if you believe the claim lacks merit. However, treating these claims flippantly can lead to errors and mistakes in handling them. This, in turn, increases the chances that you may have to settle the claim or risk losing at trial.

Working early with an employment defense attorney to prevent wrongful death claims through policy and operational changes can prevent costly litigation later. When a claim is filed, move to preserve evidence and testimony of witnesses. Then, decide with your employment defense attorney how to best address the claim.

Contact Pearlman, Brown & Wax, LLP today for expert employment litigation defense.