Wrongful Termination Claims on the Rise

Denver, COThere's something about a faltering economy that gives pause for companies and employers to view termination as a tool to ease the company's pain, and that of the shareholders. However, employment experts warn that companies engaging in wrongful termination, and citing the economy as the reason, could be in for wrongful termination lawsuits.

One of the reasons for this is that an employee who feels that they may have been terminated wrongfully, will have a much tougher time landing another job in this economy. Thus, a suspicion of wrongful termination will certainly be acted upon now.

In the past, an employee who may suspect wrongful termination, or saw that their former employer may not have had all its ducks completely in a row, may have had reason to overlook such failings considering the presence of a healthy job market. Coupled with the dog-eared musings of almost every motivational guru and job counselor out there, 'every loss is a potential opportunity' is a mantra that thrived in a hot economy.

Not any longer. And any employer seeking to terminate an employee for any reason, economic or otherwise, better have a lock-solid case. Otherwise, that employer could well expect a wrongful termination claim.

Colorado is just one State. But the state branch of the US Equal Employment Opportunity Commission (EEOC) has already seen what it describes as a drastic increase in wrongful termination claims. "Our charges have gone up dramatically," said Patricia McMahon, the spokeswoman and small-business ombudsman for the Denver Field Office of the EEOC. "I will always tell a company if they are concerned (about impending layoffs) they should consult an attorney. I can only tell them about the law. I don't know all the facts."

That advice bodes well for the employee, too. Knowing that employers are being advised to consider their options carefully before pulling the trigger on any employee or group of employees, so too must the employee have all of his, or her ducks in a row. If you sense there is something in the air blown in by the ill winds of the worsening recession, make sure that as an employee you are beyond reproach. Know what's in your employment file, and document even verbal offers of 'good work' on the part of your supervisor.

Be aware of your value to the company, and your ongoing record of performance. In order to avoid a claim, or a wrongful termination lawsuit, your employer is going to have to be careful.

So too, will you. It's not a bad idea to have a wrongful termination attorney at the ready, in the event you are approached about a termination. Further, given the challenging economic times and the need, or desire for an employer to trim employee levels, consulting a wrongful termination attorney ahead of time would be a sound investment in your future—both short, and long-term. Knowing your rights before you have a problem is not only sound career planning, it may save your hide.

"I'm definitely seeing an up tick in litigation as a result of extensive layoffs and the inability of employees to find other work," said Don Samuels, who chairs the Employment and Labor Practice Group at Holme, Roberts & Owen LLP of Boulder. "I'm telling (clients) to be very careful about how they handle layoffs - be sure they have legitimate business reasons and proper documentation to support those decisions.

"People are going to fight, and certainly a factor in the decision-making is the extent to which they are not able to get employment. That causes them to focus on the circumstances of their leaving and get angry."

So now you know the advice that employers are getting. That's good to know if, and when your number comes up. Be ready for it, and don't acquiesce simply because you feel that you're in tight with management, or you feel like you're betraying the team, or that it feels so much like family that you'll be there forever, and the owner would never do to you the kinds of things you read in the papers. You think the unthinkable can't happen to you?

Just watch. A cozy atmosphere at the office goes out the window when business, and the economy sours. It may seem like a family around there, but it's a business first. The warm fuzzies that are borne from buoyancy in the business are quickly lost when the pressure's on. You may think you're invincible, and irreplaceable just because you've played in the same foursome from head office for years.

Sorry, but business is business. And if it makes good business sense to cut you loose, your employer isn't going to hesitate just because the place wouldn't be the same without you. You're gone.

If that happens, make sure you have your strategy mapped out beforehand with your attorney. Was the company properly managed? Were there circumstances that caused the overall global recession to cut deeper into your employer? Did you try to warn them about problem areas, only to be rebuffed? Were your ideas to further the fortunes of the company, ignored?

Those who are still working—yourself included—are lucky to be in that position, and are trying to hang on. You know how hard it would be, today, to find another job. So you want to hang on. And you want to make sure that if, and when the axe comes calling for you, that you have a strong case for wrongful termination.

A case that could result in damages, or a better severance, or even the right to keep your job in a bear job market.

Wrongful termination can take many forms, and can be subject to different interpretations. Wrongful termination law is there to protect the individual from unjust behaviors by his or her employer. But it takes the skill of a wrongful termination attorney to interpret wrongful termination law, and to ensure that your wrongful employment termination is just that—wrongful, and unjust.

A good lawyer will be your best friend if, and when it happens. But just maybe, that friendship should be cultivated before it happens. The old Boy Scout motto: Be Prepared….