One of the phrases I hear most often from folks who have been recently  fired is “wrongful termination.” If I could go back in time, I would eradicate this phrase from the American employment vocabulary. It conjures up notions of justice and restitution for those who have been “wronged,” i.e. treated unfairly in the workplace. The top three reasons seem to be 1) they were terminated for doing something that they did not actually do, 2) that they never received any written or even verbal warnings prior to being terminated, or 3) that they weren’t given a fair hearing regarding the issue for which they were terminated. Unfortunately, wrongful termination as an actual legal cause of action is very, very limited and bears little resemblance to the broad meaning most people assign to it. Here are 5 things you need to know about wrongful termination in Tennessee:

1. Tennessee is an “employment at-will” state, which means that both employers and employees have the right to terminate the employment relationship at any time, with or without cause, and with or without notice. The only exceptions to this rule are written contracts which supersede the employment at-will relationship (employment contracts, union bargaining agreements, etc.), and terminations that are based upon factors that are prohibited by law. This means that they can fire you because they don’t like the color of your car, because you called in sick, because you complained that your job responsibilities were poorly defined, or because you got in an argument with a co-worker. On the other hand, you are free to quit at any time and find a job where you believe you are treated more fairly or with more respect. It’s employment at-will, on both sides. So the same reasoning that allows them to fire you without legal recourse because you look like your manager’s ex-girlfriend, likewise leaves the employer without legal recourse when you just quit showing up one day without notice, or when you told your friends that your boss was a jerk[1].
2. The exceptions to employment at-will are very narrowly defined. As noted above, if there is a written agreement which trumps the employment at-will status, there is normally a need for some cause for termination, which is often defined in the employment contract itself. Violations of an employment contract become a legal basis for breach of contract, not wrongful termination. If the employee is a member of a union, and terminations are governed by a collective bargaining agreement,  this will also override the at-will status. Union employees who are terminated should look to their union representative for instructions on how to dispute their termination.
   If there is no written contract of either form discussed above, the other reasons that make a termination “wrongful” are reasons that are based upon the employee’s membership in a federally protected group. In other words, you cannot be fired because you are of a certain race, a certain gender, a certain national origin, a certain religion, because you’re over 40 years old, because of your disability, and a number of other variations. Employers are forbidden by federal law from taking adverse employment action (i.e. termination, failure to promote, failure to hire, etc.) against an employee or prospective employee because of one of these protected attributes. Please note my emphasis on the “because of” qualifier. If you are a racial minority and you get fired, that does not make you a victim of discrimination. If you have a disability and you don’t get hired, that does not make you a victim of discrimination. There must be a causal connection between your protected status and the adverse action. Is anyone likely to come out and say, “I’m firing you because you’re a woman (or Asian, or old)?” Of course not. But there has to be some evidence linking your protected status to the adverse action. If they terminate you the day you tell them you’re pregnant (gender discrimination) or you notice that no racial minorities outlast the 90 day probationary period, those are indicators that discrimination may be at work. But if 25% of the employees at the company are Asian, and you get fired, it’s going to be harder to make a case that you were fired because you’re Asian. In order to bring a discrimination action, you’re going to have to bring some evidence to the table that your membership in a protected class was the basis (at least in part) for your termination.
3. The Equal Employment Opportunity Commission (EEOC) has “first dibs” on discrimination cases. That means that you cannot hire a lawyer and file a lawsuit until you first file a charge of discrimination with the EEOC and allow their process to run its course (which is a topic for another article). In order to file a private lawsuit, you must possess a “right to sue” letter from the EEOC, effectively stating that you are free to pursue private legal action if you choose. Wrongful termination, based on unlawful discrimination, is a result of discrimination, not a legal cause of action on its own.
4. If the termination is based upon an employee’s report of illegal or unethical activities, or refusal to participate in such activities, it may be unlawful. This is a state law that applies to activities that are in violation of the criminal or civil code of this State or the United States or any regulation intended to protect the public health, safety or welfare. The Tennessee statute (law) is called the Tennessee Public Protection Act (T. C. A. § 50-1-304), which makes it unlawful to terminate an employee for reporting or refusing to participate in these activities. In order to have a case, the employee must actually be terminated, and there must be a connection between their refusal to go along with the illegal activity and their termination. If a former employee is terminated in violation of the TPPA, s/he may file a lawsuit in the Tennessee courts, and must do so within one year of their termination.
5. Filing a lawsuit, any lawsuit, costs money. This is true even if your lawyer agrees to take your case on a contingency basis. Rarely will an attorney be willing to advance costs such as filing fees (it costs over $300 just to file a lawsuit), court reporter fees and transcript fees (which are substantial expenses involved in taking depositions), or other expenses. That means that while your attorney may be willing to do his/her actual work on a contingency basis, the costs that are required to be paid along the way are going to come out of the pocket of the client. If you don’t think you can come up with $2000-5000 dollars, you may need to consider the possibility that you may not be able to file a lawsuit. In addition to money, the “cost” of legal action requires an investment of your emotions and your time, keeping you connected to your former employer and the painful reminders of the events for a year or more, which can prevent you from being able to put the experience behind you and move on with your life. All of the costs – money, time, emotion – must be considered before you decided to take legal action against a former employer. An attorney can advise you more particularly about these costs, and can also give you an idea of your chances of winning if you file a lawsuit. It’s important to remember that even if you’re right about the unlawfulness of your termination, you may not be able to win. That’s an important distinction, and one you need to discuss with at least one lawyer.

This has been one in a series of articles I’ve titled “5 things,” and gives you a very brief overview of a particular topic in employment law. Under no circumstances should you consider the information in this article to be complete on any topic, and no article written for the general public can ever take the place of legal advice on your specific situation. If, after reading this article, you still believe you’ve been “wrongfully terminated,” call a lawyer and schedule a consultation.

Employment-at-will means that both the employer and the employee are in their employment relationship voluntarily, and both are free to terminate the relationship at will. To the employer, this means that they can terminate any employee any time they want, with cause or without, with notice or without, and are under no obligation to even provide the employee with a reason for their termination. Now, all of us know that employers do have restrictions placed on them by law which prevent them for terminating employees because of their membership in a class protected by law (race, gender, etc.[1]). Likewise, if there is a written employment agreement, that may trump that at-will nature of the relationship. Another legal protection is what is commonly referred to as “whistle blowing.” The Tennessee Public Protection Act (TPPA)[2] prohibits the termination of an employee because that employee reported, or failed to participate in, illegal or unethical behavior that violates public policy[3]. Absent one of these three issues, an employer is free to terminate an employee because they want their nephew to have the job, or because they don’t like the color of the employee’s shoes. It doesn’t matter. If the basis for the termination (or failure to hire, or failure to promote) is based on anything other than the three exceptions noted above, the employer is free to use whatever rationale they choose, or no rationale at all. That’s what “at will” means.  The employer is under no obligation to be fair. Two questions I hear a lot are whether someone can be terminated for doing something they didn’t actually do, or if they have never received any type of disciplinary action. The answer to both is that there is no requirement for employers to treat employees fairly, or nicely, or logically.

The employee, too, is free to terminate the employment relationship any time they choose, for any reason or no reason at all. An employee has fewer restrictions. They can quit because their boss is Asian, or because their co-worker has only one arm and seems to work too slowly. Pretty much the only thing that prevents an employee from terminating an employment relationship at will, without consequences, is a written employment agreement that binds them to certain terms. Very often employees do not see themselves as free to “just quit” when they are being treated badly. They need the job, and they’re not confident that they can find another comparable, or better, job if they quit. However true this assumption may be, in the eyes of the law an employee who doesn’t like their job can quit. Period.

“Right to Work” is an altogether different concept. Right-to-work states are those where a person is not obligated to join a union in order to work. They have the right to work without being compelled to join a union. This topic is currently making headlines because the National Labor Relations Board (NLRB) is suing Boeing to try and prevent them from taking  some manufacturing operations to South Carolina. South Carolina is a right-to-work state, whereas Washington (Boeing is based in Seattle), is not. Boeing maintains that, as a private employer, they are free to base their manufacturing operations wherever they choose. The NLRB, on the other hand, is claiming that Boeing is guilty of unfair labor practices by taking  the jobs out of Washington. The NLRB is a federal agency that primarily advocates on behalf of unions, so their interest is in keeping Boeing in Washington and out of a right-to-work state like South Carolina. The NLRB claims that Boeing is retaliating against the union employees by moving to a state where the employees are not free to strike under the union banner. It’s fascinating if you’re into this stuff like I am. If you want to follow the story, just Google NLRB and Boeing and you’ll get your fill of stories from both sides.

So, if you’re talking about the right to fire an employee, or the employee’s right to quit, that’s employment-at-will. If you’re talking about union labor, that’s right-to-work. Don’t you feel smarter? Remember that nothing written above, which is meant to reach a broad audience of readers, should be construed as legal advice or an accurate restatement of any law. Consult an attorney (namely me) for legal advice pertaining to your unique circumstances.