Jobs end many times with no reason. Millions are without jobs due to the recession and unemployment remains high. Workers across the country are finding themselves involuntarily separated from their jobs. In certain cases, you have a right to challenge that termination and you have some rights after you have been terminated, which may include receiving your final paycheck.
In the United States, most employment is at will, meaning the employer or the employee can terminate the employment relationship (through firing or quitting) any time, for any reason and without notice. Employees, however, cannot be fired for a discriminatory reason.
Certain workers, however, have additional protections against being fired and can only be fired for just cause.
1) Workers in a union are covered by a collective bargaining agreement, which is a legally enforceable written contract between the management and the union that sets out the terms and conditions of employment. It is usually in effect for a specified period of time.
2) Other workers, such as certain professionals, have written employment contracts that specify the length of employment and the reasons the employee can be dismissed.
3) Some government employees are covered by civil service laws that prohibit employers from firing a worker without just cause.
Federal Employees’ Remedy for Termination Under the Merit Systems Protection Board (MSPB) or a Collective Bargaining Agreement:
Federal employees covered by a collective bargaining agreement have protections against being fired without just cause. Employees terminated by the federal government can process their grievance to arbitration under the collective bargaining agreement or seek to have their appeal heard before the MSPB.
Federal law makes it illegal for the federal government to discriminate against any employee or applicant for employment because of that employee’s race, color, sex, religion, national origin, age, handicapping position, marital status or political affiliation. In addition, the federal government is precluded from taking adverse employment action against any employee or applicant for employment because of an employee’s disclosure of what the employee reasonably believes is a violation of the law (i.e., whistleblower protection). Employees or applicants for employment who believe that the federal government has acted unlawfully in any of the above may register their complaint with the Office of Special Counsel, who will investigate the case and potentially ask the MSPB to take appropriate corrective action.
For more information about federal employee termination rights, visit the Merit Systems Protection Board and the Office of Personnel Management: Employee Relations.
Private Employees’ Remedy for Termination when Covered by a Collective Bargaining Agreement
Employees who are members of a union and so are protected by a collective bargaining agreement generally may only be terminated for cause. Typically, employees who believe that they have been terminated in violation of their collective bargaining agreement file a grievance and go through the arbitration procedure, if such a procedure is included in the collective bargaining agreement. If the employer and union cannot resolve the grievance, the grievance is submitted to a neutral, third-party arbitrator. Prior to arbitration, parties will have the opportunity to obtain relevant evidence from one another. During the hearing, the parties will be allowed to present evidence and testimony and cross-examine opposing witnesses. An arbitration contains many of the same elements as a court proceeding or administrative hearing. Generally, arbitration decisions are binding on all parties. In a limited number of circumstances, however, such as procedural unfairness, fraud, corruption or partiality, a court will overturn an arbitrator’s decision.
Private Employees’ Remedy for Termination Who Are Not Covered by a Collective Bargaining Agreement (CBA)
Private employees who are not members of a union and not protected by a collective bargaining agreement are employed at-will, which means that the employer may terminate the employee at any time, for any reason.
Exceptions to this rule nearly always include termination for a discriminatory reason, such as race, sex, national origin or religion in violation of Title VII, age in violation of the Age Discrimination in Employment Act (ADEA), disability in violation of the Americans with Disabilities Act (ADA), or exercising a right under the National Labor Relations Act (NLRA).
Assisting, forming or joining a union and engaging in protected concerted activity, which is when two or more employees take action together regarding their terms and condition of employment, are protected under the NLRA, and employees generally cannot get terminated for taking advantage of those rights.
While employees may usually enforce their Title VII, ADA and ADEA rights in court, an employee must file an unfair labor practice charge with the National Labor Relations Board (NLRB) to enforce NLRA-guaranteed rights.
To file an unfair labor practice charge:
- Contact the nearest NLRB regional office and ask to speak to an information officer.
- Remember to file your charges within six months of the occurrence.
A local NLRB office will investigate the charge and potentially issue a complaint, at which point a hearing before an Administrative Law Judge will be held to determine the truth of the allegations.
For more information on Title VII, ADA and ADEA rights, visit the Department of Labor’s website.
NLRA-protected rights can be found on the NLRB’s website.
State Employees’ Remedy for Unlawful Termination:
Individual states have their own workplace laws and protections for state public employees. State public employees who believe they have been terminated unlawfully should consult their state’s website for more information on their rights, and the procedures to enforce their rights. Some state employees are also covered by a collective bargaining agreement.
If you are laid off, not terminated, you still have certain protections. The Worker Adjustment and Retraining Notification Act (WARN Act) applies to private-sector employees with 100 or more workers and requires covered employers to give employees 60-day advance notice of mass layoffs and plant closing. The Labor Department has produced a WARN guide for employees. Click here to read.