Wrongful Discharge

At-will's Big Exception

Under the employment at-will doctrine, an employer can discharge employees for any reason, even bad reasons, except for unlawful reasons. Wrongful discharges are those exceptions. When terminations violate the rights of employees, they are wrongful.

Why Wrongful Discharge Matters

When Discharges go Wrong

Courts can remedy the harm caused by a discharge if the employee proves the dishcarge violated his or her rights. Remedies can include payment for lost wages and benefits, as well as for emotional pain and suffering. But if employees cannot prove that their discharge violated their rights, courts have no power to remedy the harm.

Discharges that Violate Employee Rights

Discharges can violate the rights of employees if they:

are motivated by unlawful reasons, like discrimination or retaliation;
violate a contractual right of the employee; or
jeopardize established public policies.

A discharges jeopardizes established public policy of a state when, for example, the state has a policy requiring citizens to serve on a jury when called, and an employer fires an employee for missing work due to jury service.

MEL discusses unlawful discharges in greater detail under the topics of Contracts, Discrimination, FMLA, Harassment, Retaliation and Public Policy Discharges.

Discharges can be Wrong but not Unlawful

If the word "wrong" means the opposite of "right," then some wrong discharges, even though wrong, do not violate employees' rights. For example, until 1964, it was wrong, but not unlawful, for employers in most states to discriminate against employees based on faith, gender or race. Even now it is wrong, but arguably not unlawful, for private employers to discriminate on such grounds in the state of Ohio, as long as they have three or fewer employees. See Leininger v. Pioneer Nat'l Latex, 115 Ohio St. 3d 311 (Ohio 2007), discussed here.

The difference between Wrongful Discharge and Constructive Discharges

Legally speaking, a wrongful discharge is a discharge that violates the rights of an employee. This implies that an employer made the decision to discharge the employee.

Constructive discharge describes a decision made by an employee to quit or resign from employment. A freely made, voluntary quit is usually not a wrongful discharge because it is not a discharge. The employee resigned. However, the law can treat an otherwise voluntary quit as a discharge if the employer created working conditions so intolerable that a reasonable employee would feel compelled to quit under those circumstances, especially if the employer intended for the employee to quit. The legal significance of a consturctive discharge, then, is that the separation from employment is treated a discharge by the court, and not a voluntary quit.

Employer actions that can result in constructive disharges may include cut hours, transfers to undesirable shifts or locations or a campaign of harassment aimed at getting the employee to resign.

Once an employee proves a constructive discharge, it is still just a discharge. Like any other wrongful discharge, employees who were forced to quit must still prove that their employer violated their rights by forcing them to quit.

Employment Law Topics