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Wrongful Termination
with discussion of “protected activity”

UPDATE is coming due to new MO Supreme Court Cases — See this quick and dirty summary Margiotti – Pepose – Keveney

NOTE: If you have been fired, please also check out my article on Common steps to consider if you’ve been fired. Consider getting a “Service Letter” (what it is and why it’s a good tool to consider using) and see what story the employer will tell about why you were terminated.

“Wrongful Termination” is a catch-all phrase that does not have a distinct legal meaning. There is no general “wrongful termination” statute in Missouri, but some terminations are indeed unlawful. Lawyers and laymen often have different ideas in mind when they think of wrongful termination. By the way, sometimes when you quit your job you can still sue for wrongful termination, if your resignation meets the standards for what the law calls “constructive discharge” (It all gets very complicated).

As a general proposition, it is legal in Missouri for private, non-governmental, employers to fire someone without having a good reason to do so (unless the reason is illegal). That’s called “employment at-will” and I have a separate article about the at-will employment rule here.

However, there are illegal reasons to fire at-will employees, reasons that will give you a wrongful termination case even if you are an at-will employee. Employers try to hide behind the at-will rule even when the real reason for the termination is some unlawful motive that would give you a wrongful termination case. Your task is to prove that the reason given for your termination is untrue, and that the real reason for your termination is some illegal motive.

As always, if you have a Contract of some sort you may have special rights and remedies and you should probably see a lawyer before you say or do anything. If you are a Government Employee then your rights and remedies may be very different from those in the private sector.

Other articles that may be of interest:
constructive discharge.  
whistle blowers
workers comp retaliation
Employee Rights.  

unpaid final wages,  
service letters,  
contracts generally,  

The general public has a misconception about wrongful termination

Laymen in the private sector think a wrongful termination occurs whenever the employer fires someone without having a darn good reason. Such laymen accept that when they commit serious misconduct they may be fired. They accept that if the business is going bankrupt they may be layed off. But they don’t accept it when they get fired over petty things, or because of an argument they had with the boss about some unimportant thing, or because the boss wants to hire his nephew, or because of any number of other legal-sounding reasons which employers offer. Generally speaking, people who are fired for such reasons (if such reasons are the “true” reasons for their termination) will have a hard time finding a lawyer to sue for wrongful termination in Missouri, because of the “at-will” rule. Unemployment benefits are available for someone who has been terminated without good cause. But that does not mean that the person can sue for “wrongful termination.”

Lawyers have a different conception of wrongful termination

To a lawyer, a wrongful termination is a firing that seems to be technically a violation of one of the scarce and precious laws that protect employees. A wrongful termination may exist when the employer’s true motivation for firing someone (or forcing them to quit) is some form of discriminatory reason such as those based on race, age, gender, disability, religion, national origin, etc, or in retaliation for complaining of discrimination, or in retaliation for assisting someone else in complaining of discrimination, and on and on (see below for more info).

A wrongful termination may also occur when an employee is fired for refusing to break the law or a code of ethics, or when the employee is fired for reporting a law violation or breach of a code of ethics. Wrongful termination lawsuits can arise from retaliation for other things like union activity, or complaining to OSHA, or complaining about the failure to pay overtime.

If a person exercises a civil right and gets fired for it, the person might have a wrongful termination case. A person might have a wrongful termination case if the employer’s motive for the termination is tied to any form of “protected activity” by the employee (see below).

And remember, people who quit their jobs are not necessarily out of luck, if they can meet the standards for having their resignation treated as if it were a firing without good cause. Although a truly voluntary quit is not an Adverse Employment Action, a resignation sometimes will meet the standards for Constructive Discharge and be treated as a firing without good cause, so sometimes a Quit can be a “wrongful termination”.

Examples of potentially “protected activity” which might give you protection against retaliation. These are things you did, or things you assisted others in doing. This list is not all-inclusive.

NOTE: Protected activity often occurs because of “complaints”. See my article Making proper and effective complaints for tips and traps related to the complaint process.

  • Complained to the employer, or reported to a government agency, about a problem with discrimination, including
    sexual harassment and all other categories (race and national origin, age, gender, pregnancy, disability, and religion)
  • Complained to the employer, or reported to a government agency, about a problem with safety issues
  • Complained to the employer, or reported to a government agency, about a problem with unpaid overtime
  • Complained to the employer, or reported to a government agency, about a problem with ERISA benefits
  • Complained to the employer, or reported to a government agency, about many other types of law violations, such as labor law violations, some criminal law violations, etc. . .
  • Complained to the employer, or reported to a government agency, about many types of ethics violations
  • Used employee benefits
  • Needed or used FMLA leave, or complained about a FMLA violation.
  • Requested accommodation of a disability
  • Exercised a civil right (but be careful – private sector employees have few “civil rights” that the employer must respect when on the job)
  • Filed a workers compensation claim – see also my Workers Comp Retaliation article
  • Exercised a right given to you under the workers compensation laws.
  • Served as a witness at an unemployment hearing
  • Served as a witness in a state regulatory investigation, such as for nursing home practices, casinos, etc.
  • Were a whistleblower
  • Engaged in union-related activity
  • (even if non-union shop) Acted in concert with other non-union workers to redress grievances, such as fairness or safety or pay issues
  • Refused to violate the law or a code of ethics
  • Refused to do something you considered too unsafe. See my safety article for more info.
  • Sued the employer under certain laws such as the discrimination laws, whistleblower laws and benefit-related laws.
  • ASSOCIATION: Did any of your friends or associates do any of the above, and you got fired because of what they did or said, whether or not you helped them directly?
  • GENERALLY – Whenever you engage in conduct that has legal significance in some way, and get retaliated against for doing so, you may have a retaliation claim (it all depends on the circumstances, of course)

NOTE: There is also a list of “Protected Activity” in my Retaliation article. Check the Protected Activity List in the Retaliation article to see if I updated one of the lists but inadvertently failed to update the other. Maybe one day I’ll carve out the protected activity list into a separate article so I only have to maintain one list.

There are other forms of wrongful termination, and the above is not an attempt to list them all. But I hope that the list is inclusive-enough to raise your awareness of some of the more common types of wrongful terminations.

More about the Public Policy Discharge form of wrongful termination

For many of the types of “protected activity” I mention in the list above, there are no special statutes that might explicitly give you protection against a retaliatory termination. Usually, that means that you will probably have to rely on the “public policy discharge” theory if you want to take legal action.

Public Policy Discharge means, in a quick nutshell, that it might be a wrongful termination if you get fired for reporting illegal or unethical activities, or if you get fired for refusing to violate the law or a code of ethics. For one example, the CPA or accountant’s code of ethics could be a fertile source of growth for wrongful termination cases under the public policy discharge theory. Each case is unique, and it’s often very difficult to isolate a good solid legal or ethical basis for a public policy discharge claim.

Things to think about in preparation for talking to lawyers

When you call lawyers, be prepared to discuss the possibility that you might have engaged in some protected activity in the past that may be causing the employer to fire you now.

Back in time when you engaged in the protected activity, the employer may have branded you as a troublemaker, or at least started to fear that you may have legal rights. At that point, in the past, the employer may have begun to document your file in preparation for termination at some point down the road. Employers may involve their own lawyers in planning a strategy of how to handle you, so the employer is pretty well prepared. You may have noticed your performance evaluations slipped, and you started getting written up for things that were no big deal previously. These were the signs and symptoms of impending discipline or termination. If you had gotten legal advice when the signs appeared, you might be in a better legal position today.

The key is to discover the “true” reason that motivated the termination, if you think it might be different from the reason the employer told you. Employers do not commonly admit that they are really firing you over that EEOC claim you filed a few months ago. Instead, they make excuses, which we call “pretexts”, as cover stories: they claim your performance was deficient when you know it was not, or they falsely claim a work slowdown occurred which meant you got laid off, or, as is common today, they accused you of “falsification of records” for a seemingly minor documentation discrepancy, etc.

So if you suspect a wrongful termination is brewing, call a lawyer without delay. Don’t be surprised if the lawyer asks you to pay hourly fees for advice at this early stage of the potential case. The lawyer might be able to help you fix the problem and continue your career.

See also my retaliation article. If you are thinking of making an internal complaint, please see my complaints article. Please don’t quit without getting legal advice, as I explain further in my constructive discharge article.

Article written by | Tim Willoughby

***** END OF ARTICLE ***** Missouri Employment Law

Maintained by Attorney Phil Willoughby
Founded by Tim Willoughby, Esq. (1959-2013)

Phil is a Missouri employment lawyer who is licensed to practice in Kansas and Missouri, and primarily takes cases in Saint Louis and Kansas City. He is a member of the Missouri Bar Association and Kansas Bar Association. Additionally, he has practiced in the United States Federal Courts of Missouri in St. Louis and Kansas City. He has also practiced in the Kansas Federal District Court in Kansas City, Kansas.

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Phil Willoughby, Attorney
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