Wrongful Termination Archives

Do at-will employees have legal rights for wrongful termination?

As Georgia earns a reputation as a top state for doing business, there’s an underside for workers: Employer-friendly laws sometimes leave employees with fewer protections.

With limits on labor organizing and no state laws on the books regarding flexible shift scheduling, paid sick leave, paid family leave and other top employee concerns, Georgia workers don’t always have a robust slate of safeguards. Like almost every state in the U.S., Georgia is also an at-will employment state, meaning employers can fire employees at any time and for any reason—unless it’s an illegal reason.

There are some exceptions to the at-will employment doctrine. Employers cannot fire employees for any reason that violates the federal civil rights law—such as the employee’s race, sex, age, disability, or nationality. Public employers—including state agencies, counties, cities, and school districts—can’t fire an employee for refusing to break the law. And no employer can fire an employee for heeding a jury summons. Contracts can also change the terms of an employment relationship. Typically, though, employers in Georgia may let someone go for any reason, or for no reason at all. While this can be frustrating, or even deeply unfair, it’s not illegal.

 Still, sometimes a termination just doesn’t sit right. Whether you have a clear record of retaliation or simply a suspicion that discrimination played a role in your firing, it can be hard to know how to proceed. So, what rights do employees have in an at-will employment state, and how do you prove wrongful termination?

Wrongful termination defined

Employers are given a lot of leeway in terms of acceptable conduct during a termination. They are, however, still subject to federal and state antidiscrimination laws, employment contracts and whistleblower protections. 

Wrongful termination claims typically center on:

Contractual promises: Contracts can redefine the at-will employment arrangement, stipulating that employees can only be fired for cause, like wrongdoing or an intentional breach of contract or company policy. Executives often protect themselves with such contracts, which may also set the terms of their severance. If you can argue that the firing broke the terms of your contract, you may have a wrongful termination suit.  
Employment Discrimination: Employers can’t fire workers because of a protected characteristic, like race, color, religion, sex (including pregnancy, gender identity and sexual orientation), national origin, age (40 or older), disability or genetic information. Before bringing a private suit, you have to file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC).
Family and Medical Leave Act use: Employers can’t fire workers for using or planning to use Family and Medical Leave Act (FMLA) protections. Such cases are also often associated with discrimination based on disability, genetic information or pregnancy.  
Retaliation: Employees can’t be fired for making an EEOC complaint, testifying in a coworker’s EEOC case, requesting accommodation, resisting sexual harassment, asking about possible pay discrimination or for using FMLA. Employers also can’t fire workers for filing a workers’ compensation claim. While discrimination cases can sometimes be challenging to prove, retaliation is often more clear-cut.
Military service: Employees cannot be fired because they need time off for anything related to their obligations to U.S. miliary service, including answering National Guard obligations.
Whistleblowing: Workers can’t be fired for reporting a workplace hazard to the Occupational Safety and Health Administration (OSHA) or for raising the alarm about certain illegal activities or issues like youth employment.
Violations of law: Employees of Georgia state agencies, counties, cities, school boards, or any other public employer can’t be fired for refusing to break the law or for reporting suspected violations of law.

Proving wrongful termination

Companies with proactive HR teams are typically quite mindful of potential employment suits. While at-will employment gives companies the right to terminate employees without cause, many are careful to show their work: documenting poor performance reviews, warnings or attempted interventions. If there’s no record supporting the employer’s decision, they are in a more vulnerable position.

Often, the first step in a wrongful termination lawsuit is challenging the employer’s story and demonstrating you were fired under false pretenses. Then, you must also show that the employer’s actual reason for termination violated the law. After a termination, you’ll want to:

1.     Take notes about what was said during your meeting. While employers don’t have to give a reason for firing, some comments may be revealing.

2.     Don’t agree to your severance package right away. Doing so will almost certainly close the door on a future employment lawsuit. 

3.     Contact an employment lawyer to discuss your options. Getting an expert opinion from someone with a strong understanding of your situation and labor laws will help determine if you have a potential lawsuit, or if you’d be better served negotiating for a stronger severance agreement.

4.     Build up a record that challenges the company’s narrative regarding your firing. It’s helpful to save your performance reviews, make note of your company awards and flag emails from your supervisor celebrating your work. Since companies often freeze email access upon termination, maintaining these records on your own devices is a good practice.

5.     Collect evidence of employer wrongdoing. Depending on your situation, this could include your employment contract, the employee handbook, records of discriminatory comments or actions taken by your employer, written requests for accommodation or reports of wrongdoing.

 After evaluating your claim, your wrongful termination attorney will advise you on the best path forward. In employment law, it’s helpful to work with an attorney who understands Georgia businesses and knows the true, unspoken limits of possible compensation. If your goal is justice and future career growth, you’ll want an employment attorney who sets realistic expectations and provides hands-on representation.

 Contact Radford Scott to discuss your options

While there are limits to worker protections in Georgia, you do have rights. At Radford & Keebaugh, we represent individuals—not companies. We understand the corporate budgeting that plays into how much businesses set aside for possible employment settlements, and we know how to make a compelling case for wrongful termination. If you’re ready to move past an illegal firing and move forward in your career, we’re here to provide the legal advice to get you there. Contact us today to discuss your situation.

Red flags in severance agreements 

Severance agreements can be a helpful tool for transitioning through a job loss. They extend some temporary stability during a time of upheaval by offering benefits like pay, insurance coverage and even continued access to company perks.  

But businesses don’t trade away money and benefits without asking for something in return. Severance pay isn’t required by federal law, and Georgia is an at-will employment state, so companies are free to fire employees at any time, for any reason—so long as it’s not because of a protected characteristic, like race, religion, color, sex, national origin, age, genetic information and disability.  

Still, many companies choose to offer severance packages. Doing so helps limit damage to their intangible assets, like public goodwill, and their reputation as a great place to work. It’s not all about marketing and recruiting, though. Severance agreements typically include a release or waiver of liability for claims. Essentially, in exchange for the severance payment, an employee agrees to forgo the right to pursue any legal claims against the company.  

The severance agreement is often presented to an employee at an emotionally vulnerable point—the time of termination. It is no surprise that employers might sometimes abuse the process. While a severance agreement should work to everyone’s benefit, there are some red flags departing employees should watch for: 

You’re pressured to sign 

You are in no way required to sign a severance agreement or release of claims.

After a layoff, it’s easy to feel overwhelmed by all of the emotions that come with being let go—the surprise, disappointment, fear, self-doubt or even anger. It can be hard to carry out a conversation during a termination meeting, let alone review and sign a document.   

Companies should never pressure employees to sign severance agreements on the spot, or imply that they have to. Workers who are 40 or older have clearly defined protections in this respect. The Older Workers Benefit Protection Act (OWBPA) gives them 21 days to consider the agreement and a further 7 days after signing to change their minds. If the layoff is part of a larger downsizing, they have 45 days to review the agreement. Even if you’re under 40, many companies extend the OWBPA decision period to all employees—it’s always OK to ask HR how long you have.  

The agreement contains restrictive covenants  

Restrictive covenants, including non-competition clauses, confidentiality clauses, non-disparagement clauses, cooperation clauses or non-solicitation clauses, can seriously limit your career prospects, making the immediate gains—short-term severance pay—not always worth the sacrifices.   

While such covenants are becoming more and more common, you’ll want to carefully review the language before signing. If they bar you from working in your field for a period of time, your severance compensation should absolutely support you during that required career pause. But also ask yourself if that is what you want. Maybe you know you have strong contacts at another company and you’re ready to make moves towards a new job there. Or you’ve been considering starting your own business for years and don’t want to feel held back.  

Leaving money behind may be challenging during the uncertainty of a layoff, but, in some cases, it’s more advantageous to walk away without limiting your future flexibility and independence.  

You’ll be held responsible for damages   

If you’ve spotted restrictive covenants in your severance agreement, you’ll also want to look out for liquidated damages clauses, which set a fixed compensation amount for contract breaches. Typically, a business has to prove it was harmed by a breach of contract. If, for example, a company wanted to argue an employee’s violation of its confidentiality clause hurt them in some way, they’d have to demonstrate how. But with a liquidated damages clause, they can collect a lump sum from the former employee if a contract violation occurred.  

Liquidated damages clauses also pop up sometimes in employment contracts, even dictating the terms of your eventual exit. If you’re working with an employment attorney on a severance review, it’s often smart to return for an employment contract review down the road. 

You’re asked to give up rights 

A waiver of liability for claims is expected in any severance agreement. A company offers the goods—pay, insurance and other benefits—in exchange for the agreement not to sue. This in itself requires consideration if you believe the terms of your dismissal were unfair. Discrimination suits can be challenging, and it takes an employment attorney to give you a realistic assessment of your prospects. 

But while it’s fair for a company to ask you to sign a release of claims (so long as they’re offering you something in return and not pressuring you to agree), there are limits. A company should not: 

Ask you to release rights you cannot waive in the first place, like your cooperation with an Equal Employment Opportunity Commission (EEOC) investigation 
Ask you to waive future claims—claims that may happen after you sign the document  
Ask you to give up things you’re entitled to under federal or state law, like COBRA insurance coverage, unemployment compensation or workers’ comp pay

You’ll need to “stay available for questions” 

If you’re asked to work for a period of time before your official end date begins, or if you’re asked to help with training, answer questions or otherwise keep the ship running after you’re no longer employed, that’s an issue. If your severance contract hints at situations that don’t quite sound like an actual split, you’ll want to speak to an employment attorney to clarify what’s being asked of you and what payment you should expect in return.  

You get a lowball pay offer 

Employers typically offer one to two weeks of pay per year worked. Managers and executives typically get more. If you’re offered less than two weeks per year, or if your company suggests a small lump sum, that’s a sign there could be other issues in the contract. Unfortunately, many employees don’t realize this, believing a severance offer is a one-way negotiation. Your time with the company, your performance reviews and documentation of your ideas and contributions all increase your leverage.  

You should also have an exact understanding of how and in what increments your former employer will make severance payments.  

If you have earned benefits, like vested commissions or, in some cases, unused PTO, be sure this isn’t lumped in with your payments. The company cannot use compensation you have a right to as consideration for releasing employment claims.  

Schedule a severance agreement review with Radford Scott   

Severance agreements should help you move on in your career—not hold you back. If you’ve been affected by a layoff, contact an employment lawyer to set up a severance package review. We’ll offer you legal advice, helping you avoid pitfalls and negotiate for what’s fair. And when you’re ready for your next position, we can take a look at your employee contract to ensure you’ll be off to a good start. Contact Radford Scott today to set up your severance review.  

Negotiating a severance agreement: know your rights and form a strategy

With layoffs dominating the news (and likely your LinkedIn feed), severance is top of mind for many employees right now, even if they have yet to face a sudden cut. Even employees who are terminated for performance may be asked to sign a severance agreement that contains a general release of claims.

While severance pay isn’t a given—the Fair Labor Standards Act (FLSA) doesn’t require companies to provide it—many businesses choose to do so. It’s a way to soften departures for valued employees, manage the company’s reputation and head off potential employment lawsuits. In exchange for some clearly defined benefits, including pay, insurance coverage or even strong references, companies ask employees to release them from future litigation, sometimes also throwing in non-compete or non-disclosure agreements.

Because both the departing employee and the company stand to gain from the agreement, there is the potential for negotiation. Unfortunately, employees don’t always realize this. In an effort to quickly secure what they can, many leave money or other benefits on the table, limit their future prospects with onerous non-competes or cut off the possibility of a valid employment lawsuit.

So, what are your rights when it comes to severance negotiations, and how can you move on with your career in the most positive way?

Don’t feel pressured to sign immediately

It’s easy to feel blindsided by a separation. But while your computer may suddenly be disabled and your badge frozen, that rushed feeling of finality shouldn’t extend to your severance negotiations. It’s always a good idea to take some time to process the news, move past the immediate shock and really examine the package your company presents.

If you are over 40 years old, the Older Workers Benefit Protection Act ensures that you have 21 days to consider a severance agreement, then 7 days to change your mind after signing. If you are part of a reduction in force (mass layoff), you have 45 days to consider. Consequently, many companies use at least the 21-day waiting period as a standard for all departing employees.

While you may wish to confirm the timeline with HR during your termination meeting, don’t feel obligated to sign anything on the way out. You should always have time to call an employment lawyer and schedule a severance agreement review.

Consider the terms of your dismissal

While some layoffs may leave you in the company of thousands of your coworkers, others feel more personal. Look back on your employment and your dismissal. Do you feel you may have been the victim of discrimination, because you are a racial minority with your employer? Do you feel your sex was a factor because of sexist comments made by members of management? Did you request a medical accommodation, or medical leave shortly before being fired? Did you speak up against discrimination, and now you feel you are suffering retaliation?

If so, you have legal rights to have these concerns investigated by the U.S. Equal Employment Opportunity Commission (EEOC), and the right to bring a lawsuit if you have evidence to support your claim. Before waiving these valuable rights, you need to ensure the severance offered is adequate consideration.

During a severance package review with an employment attorney, you can discuss your dismissal and talk through your options. Pursuing litigation is never easy, but sometimes it’s the right choice. Signing your severance package closes that door definitively.

Negotiate your pay, but also look beyond it

Some companies adopt a standard severance package offering about two weeks of pay for every year you’ve worked—more if you’re a manager or executive. Pay is a straightforward place to negotiate.

Aside from pay, however, you’ll want to examine the following:

Accrued vacation time: If your PTO balance is in the positive, you could request this is paid out separately from your negotiated severance pay. In Georgia, your employer is not legally obligated to pay your unused PTO balance, but it can be a good negotiating point.
Health benefits: Many companies are required to offer COBRA benefits, allowing you to stay on the company insurance plan for up to 18 months. Because you have to carry the employer’s cost plus your own premiums, this can quickly eat up your budget. Talk to your employer about covering their share of the costs until you find a new job—especially if you have known healthcare needs.
Stock options and retirement plans: Company policies differ a lot here. Ask for policy documents in your meeting, then review them with a Georgia employment lawyer before you sign.
Perks: If you enjoyed airline elite status, a subsidized gym membership or the use of a company car, check to see if your employer includes them in your package. Like pay, it doesn’t hurt to ask your employer to extend perks until you find your next position.
Outplacement services: Businesses sometimes offer career counseling or coaching to help smooth employee transitions. If you were in a high-growth stage of your career or you’re ready to try something new, check to see if these are included.

Be careful with non-compete agreements

Pay, insurance and extended perks can all help ease your transition into a new role. But if your package includes a non-compete agreement that limits your ability to work in your field, you’ll struggle in the long run. Have your employment attorney review any confidentiality clause, non-disparagement clause, cooperation clause or non-solicitation clause, especially if you plan to stay in a similar field, local market, or start your own business.

Ask for what you need

While a layoff might leave you feeling retrospective—looking back on your job and what you brought to the company—it’s also a great time to consider your future and what you value most. In addition to speaking with an employment lawyer, you may wish to schedule a career counseling session to get a sense of your prospects and the timeline for landing a new job, furthering your education or switching careers.

Once you have at least a rough sense of where you’re going, ask your former employer for what you need most. If you’re expecting a baby, maybe that’s a lump payment and extended healthcare coverage. If you expect to secure a new job soon, you might want continued perks and an adjusted departure date. If you’re switching careers, coaching and distributed payments that lessen your tax burden might make more sense.

Manage your reputation

Today, many employees are more open about job loss, understanding the power of networks and the cyclical nature of hiring and firing. But that doesn’t mean you can’t finesse your exit as a part of your severance negotiations. If you’re at the executive or management level, consider the planned communications about your departure. Will you be able to review or offer quotes? Will your company presence, especially your bio, stay live online while you look for a new job? Will you be able to expect a reference?

As you move on to your next role, keep tabs on your own achievements. It’s helpful to have a record of what you’ve accomplished if you ever find yourself in severance negotiations or considering an employment lawsuit. Downsizing can happen at any time, and it’s a good idea to stay ready—no matter how much you enjoy your work or feel confident in your company’s stability.

Schedule your severance agreement review with Radford & Keebaugh

If you’ve been laid off, give us a call to set up a severance agreement review. We’ll let you know what’s expected in a fair severance package, and we’ll help you identify where to negotiate. Contact us today to set up your severance review.

How to Protect Yourself from Unlawful Workplace Harassment

Speak up to protect yourself from unlawful workplace harassment

Workplace harassment can quickly drain the joy out of any job. While there’s a growing shift toward speaking up about abusive comments and conduct—the #MeToo movement marked a major change—plenty of people still feel pressured to stay silent.

Employees at every level—from hourly workers to those in senior management—, can feel silenced. Low wage earners and those who face power imbalances like immigration status may fear they’ll lose much-needed work or endanger their family’s safety if they report harassment. Those in management or executive roles may worry they’ll derail a career they have built over many years, burn bridges in their industry, or gain an unfair reputation for being difficult.

No one deserves to endure workplace harassment. It should never be a condition for continued employment or career advancement.

If you feel like you’re being harassed at work, early intervention, clear self-advocacy and documentation are your best strategies for ending the negative behavior and protecting your legal rights so you can move forward in your career. If the harassment doesn’t stop, or if your company retaliates against you, those strategies will also form the foundation for your legal complaint.

What is workplace harassment?

Legally, harassment occurs when a supervisor, coworker, vendor, client or customer makes an employee or group of employees feel threatened or abused, and that behavior centers on one or more protected characteristic, like race, religion, color, sex (including gender identity, pregnancy and sexual orientation), national origin, age, genetic information and disability.

Unfortunately, the law does not cover harassment when it is not based on one of these characteristics—e.g. you have an “equal opportunity jerk” for a boss. Indeed, not all toxic behavior is illegal. Leaders may micromanage. Coworkers may make passive-aggressive comments. Clients may let slip an inappropriate joke.

Title VII of the Civil Rights Act of 1964 protects workers against unlawful harassment, as does the Age Discrimination in Employment Act and the Americans with Disabilities Act.

According to the Equal Employment Opportunity Commission (EEOC), harassment becomes illegal when:

Putting up with the harassment is a requirement of employment.
The harassment is so severe or ongoing that a “reasonable person” finds it abusive or hostile.

It’s also illegal to harass anyone already involved in a discrimination suit or EEOC complaint.

What does harassment look like?

Unfortunately, workers sometimes excuse away harassment because it doesn’t register as something clearly wrong or illegal, like a physical assault.

Harassment may take many forms, however, including:

Offensive jokes based on race, sex, national origin, or disability
Slurs and epithets
Intimidation
Physical threats, as well as actual assaults
The display of offensive pictures, signs, or symbols
Mockery of one’s protected characteristic

Harassment can be sexual, psychological, physical, verbal or take place entirely online. And because it’s pervasive and hostile, victims can include onlookers—employees who aren’t the intended targets of the abuse.

Unlike some other forms of discrimination, harassment doesn’t need to lead to a lost opportunity in order to qualify as illegal. It doesn’t require a missed promotion or a job loss. The workplace itself is the problem.

What should you do if you believe you’re being harassed?

Employers have an obligation to protect their employees from harassment. Ideally, this is preventative work, with clear messaging around conduct, manager training and open channels for reporting issues. When a problem arises, companies that value their people, public reputation and productivity take swift action.

If you believe you’re being harassed at work, it’s sometimes productive to directly ask your harasser to stop. Not everyone will feel comfortable doing this, however, or it won’t be effective. Regardless, your next step is to put your concerns in writing and share them with HR. Aim for clarity here—be concise, polite and make note of the protected characteristics your harasser has targeted.

What actions should you expect from your employer?

Employers are liable for the behavior of employees, contractors or visitors if they know about harassment and choose not to act. They’re liable for the behavior of supervisors if the supervisors create a hostile environment or exert a negative influence on the career of the person being harassed.

Your employer should act quickly and keep you updated on progress. If HR suggests corrective opportunities, accept them or clearly voice why you feel they could expose you to further harassment. Employers can sometimes defend themselves against harassment claims if they argue the accuser didn’t work cooperatively.

Of course, if your employer responds with hostility—a demotion, for example, poor performance reviews or a dismissal—you may have a retaliation suit. While it’s sometimes challenging to prove harassment, retaliation is often quite clear. Again, it’s helpful to maintain records of your attempts to resolve the problem, as well as notes on the harasser’s actions and your own performance reviews.

A Georgia employment lawyer can help determine if you have a possible claim with the Equal Employment Opportunity Commission or the Georgia Commission on Equal Opportunity. No one should feel unsafe or abused at work. While career mobility and advancement are undeniably important, so is advocating for a safe and healthy work environment.

Contact a Decatur employment lawyer today

At Radford & Keebaugh, we’re open and up front with our clients. We’ll take a look at your situation and give you our honest opinion. Our goal is to help you end harassment and move forward in your career. Contact us to talk over your situation.

Pharmaceutical Company Faces Two Charges of Pregnancy Discrimination

A Texas pharmaceutical company faces charges of discrimination after firing two pregnant employees. The two former employees of Pharmacy Solutions allege in their lawsuit that the owner of the company began the discriminatory treatment towards them after each informed him of her pregnancy.

Arian Lemon, former pharmacist for the company, alleges that after she requested time off for doctor appointments, management began to make disparaging remarks and terminated her three months after she took maternity leave. Emilee Stephens, former pharmacy technician, faced similar discriminatory treatment after informing management she was pregnant and was ultimately terminated from the company in 2013.

As detailed in this article, the EEOC has filed approximately 45 complaints for alleged pregnancy discrimination, resulting in $3.5 million in damages. In order to deter future discrimination, injunctive relief has been awarded against employers as well.

In the wake of the EEOC’s restructuring its policies on discrimination against pregnant workers, EEOC Regional Attorney, Robert Canino, “I am surprised that this issue continues to be a recurring theme in the workplace in this day and age. We hope that by continuing to increase public awareness through our law enforcement efforts, we will see more of an awakening by some companies about the right of a woman to hold on to her job and earn a living when she is expecting and during maternity leave.”

If you or someone you know thinks they have experienced discrimination due to pregnancy, the team at Radford & Keebaugh can help. Contact us by phone at (678) 369-3609 or use out contact form.