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(Wrongful) Termination 1, 2, 3!

People call me all the time and tell me that they've been wrongfully terminated. As with most things, the colloquial use of a word or phrase often has a different. if similar, meaning for lawyers. It's called a legal term of art. When a person follows someone down the street, shouting insults, and refuses to stop, we say they are harassing that person. Everybody knows that, and they're not wrong, but in legal terms they're also not right. Harassment is an actionable threat of harm to a person or property that the offender has the present ability to carry out. It varies from place to place, but that's basically the idea.

The law is full of these legal terms of art, and wrongful termination is one of them. In Washington State, the legal claim is actually called wrongful termination in violation of a public policy. This is a narrow exception to our "at will" doctrine. That is, for most, not all, employees, you are at will, and can be fired for any reason at any time. People like union members, government employees, and people with "for cause" clauses in their employment contracts have heightened protections against termination, and it's a subject that I will do a whole post on in the future.

Let's test this with a hypothetical. Let's say you don't get along with your coworker, and that coworker is the boss' best friend. The boss fires you. You feel that you were wrongly terminated. You're not wrong, and I get this call all the time. Most people would agree that your termination was wrong. Bosses shouldn't be firing employees because they don't get along with the bosses friends. But as far as the law is concerned, assuming you are, as most people are, an at will employee, you've been legally fired.

So what is wrongful termination as a legal term of art? Like I said at the top. It's like a punk rock song that loops back on the chorus over and over again. It's 1, 2, 3!

1. Is there a public policy at play. We call it the clarity element, but really it's the who really cares element. Is there discrimination, complaints of safety violations, or fraud that could be impacting the marketplace. It's broader than that, and I've come up with some creative arguments to shoehorn a situation into a workable public policy, but you need something.

2. Would us not acting on your public policy issue create more risk for others in the future. We call it the jeopardy element, but really it's the could it harm me at some point element. This is a pretty straightforward argument, and goes hand-in-hand with the clarity element.

3. Was your public policy linked activity a substantial factor in your employer's decision to terminate you? We call it the causation element, but it's really the show me element. It's the hardest element to establish, and we spend most of our time arguing with opposing counsel about it, but at the end of the day, if you can establish that your termination was, at least partially, motivated by your employer's illegal behavior, we're in business.

There's more to it than that, but a comprehensive legal brief on the issue is a little much for a blog post. Here's the bottom line. If you're reading this, and thinking, that sounds like what happened to me, call me for a free consultation. Also, if you'd like to see a very good video on the subject, check out my friend Ed Hones' video HERE!


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