Employment

Wrongful Termination

"Wrongful Termination" is a term that generally refers to a person being fired when they shouldn't have been. It can be a very misleading phrase. Many terminations that people think of as "wrongful" aren't illegal.


The Guide Below Is for State & Federal Law.

The principles described here apply to both. However, there are some differences that could make a difference to individual cases. It should also be noted that the damages for sexual harassment in the workplace cases differ greatly between State and Federal law.


Two Types of Sexual Harassment in the Workplace:

There are two types of sexual harassment in the workplace, "quid-pro-quo" and "hostile environment".


The Hostile Environment will be explained in a separate section, although where there's one, there's often the other.


Quid-Pro-Quo Harassment

"Quid-pro-quo" is Latin for "this for that." It is a trade. When the trade is on the basis of sex, it is illegal. Most commonly, this situation arises when a supervisor compels a subordinate into a personal, sexual relationship in order to keep her job and/or gain a promotion.


When the employer makes sex a condition to getting something in the workplace, it is wrong in a legal sense. For example: " sleep with me and you'll get the job/promotion/etc." That's illegal. This type of sexual harassment in the workplace is the "casting couch" cliché.


Quid-pro-quo can also include negatives. For example, "sleep with me or you're fired" is also illegal.

"Whistle Blowing"

The Guide Below Is for State & Federal Law.
"Whistle Blowing" occurs when an employee tells on an employer who is breaking the law, or otherwise reports such concerns internally to management. Employees who blow the whistle on their employers are protected by law. If they are fired or otherwise retaliated against for whistle blowing, they can sue.

What Is Whistle Blowing?
To actually "Whistle Blow", the employee must tell of the illegal act to someone in authority within the company, or approach an outside entity such as a government or law enforcement agency. You should always document your reporting of unlawful activity in written form when you do it.

If the employee just complains to someone inside the company who is not in a position of managerial authority, that is not whistle blowing, and the employee is not protected by the whistle-blower laws. However, the employee may be protected under other laws. For example, it is illegal to fire someone for complaining of sexual harassment or discrimination.

Does the Employer Have to Have Broken the Law?
It is not necessary that the employer actually broke the law. The employee could be whistle blowing on something that isn't illegal in the first place. The employee is still protected from retaliation or termination.

However, the employee must believe that he or she is reporting a violation of the law, and the employee's belief must be reasonable.

How is the Employee Protected?
If the employee has reported the allegedly illegal activity to a member of company management or a government agency, he or she is protected. The employer cannot retaliate against the employee. The employer cannot fire the employee for the whistle blowing. The employer cannot mistreat the employee for whistle blowing.

This does not mean that after whistle blowing, the employee cannot be fired for any reason. The employer can continue to treat the employee like any other employee. But the employer cannot treat the employee differently because of the whistle blowing.

Obviously, if the employee whistle-blows on Monday and is fired on Tuesday, it suggests that the employee was retaliated against for making the report. Beyond several months between such events, though, it becomes difficult to prove an unlawfully retaliatory discharge - unless events in between suggest the employer was mad and acting out against the employee who blew the whistle.

Pregnancy Medical Leave & Accommodations

Discrimination based on pregnancy is illegal under both the State and the Federal Title VII laws

This includes discrimination based on pregnancy, childbirth, or related medical conditions.

Even discrimination based on the "potential" for pregnancy is illegal. For example, in one case a manufacturing company would not allow women to work certain jobs because if they were pregnant there could be harm to their fetus. This was illegal discrimination.

Accommodating Pregnancy
Employers have a number of responsibilities to employees who become pregnant. For instance, if a woman becomes pregnant, and with the advice of her doctor asks for a position that is less strenuous or hazardous, the employer must transfer her to another position if it has one, or can make one without being "unduly burdened". Basically, if its not too much trouble for the employer to accommodate the woman's needs, he has to do it.

Pregnancy Family Medical Leave
Federal Title VII Law does not explicitly require employers to grant Pregnancy leave, although it does prohibit Pregnancy discrimination. However, the Federal Law does require employers to grant medical leaves, which are applicable to pregnant women (See separate section on family and medial leave.)

A "reasonable period of time" is the time period where the woman is "disabled" because of her pregnancy, childbirth, or related medical conditions. "Disabled" in this context simply means she cannot work. During a Pregnancy leave, a woman may also use any vacation time she has accrued.

Employers can require any employee who plans to take a pregnancy leave to give the employer reasonable notice of the date the leave will start and how long it is expected to last.

Employers generally cannot force a pregnant employee to go on pregnancy family medical leave. It is there if the woman wants it. However, if the employer can show that the woman absolutely cannot do her job, or is "disabled" by the pregnancy, he may be allowed to make her take a leave of absence. This is, however, a very difficult situation for the employer, because it is likely that the Pregnancy can somehow be accommodated, which means the woman should be allowed to stay.

Implied & Oral Contracts

Implied Contracts
Implied contracts can be created many ways. Generally, Kansas law recognizes implied employment contracts, but Missouri law does not. They are more common than written contracts in the employment relationship.

Implied contracts are often called "oral or implied contracts". This is because implied contracts are usually created by both circumstances (which "imply" that a contract exists) and oral statements.

For the sake of clarity, "oral or implied contracts" will be referred to here simply as "implied contracts."

Contracts that are more strictly oral in nature will be called "oral contracts", and are discussed below.

The Essential Term of the Implied Contract
"Good Cause" is discussed in the section for Breach of Contracts under written contracts. It is very nearly the same when dealing with implied contracts.

An agreement that the employer won't fire the employee without "good cause" is the basic term of the implied contract in an employment relationship.

An employer "breaches" or "breaks" not to fire without "good cause" when:
  1. The implied contract said no termination without good cause.
  2. There was no good cause to fire the employee.
  3. The employee was fired anyway.
How the Implied Contract Is Created 
The following are some of the ways implied contracts can be created. The more factors that exist in a given situation, the more likely there is an implied contract.
  1. Length of Service
    1. This is a very important factor in creating an implied contract. The length of service must be significant. Two weeks at an employer does not create an implied contract.
  2. Progressive Discipline Policy
    1. Many employers have policies of "progressive discipline." These policies state that employees will not be fired the first time they make a minor mistake. Instead, employees receive warnings, second warnings, etc., before they are fired. Even when there is a progressive discipline policy, there are probably a number of things the employee can do which will get him fired immediately.
  3. Employee Benefit Programs
    1. Retirement programs, 401K programs, and the like can help to create implied employment contracts, because they help imply that the employee is expected to be around long enough to participate in them or get their benefit.
Good Cause for Termination
As stated above, employers who have created implied contracts cannot breach them.

To determine if an implied contract has been broken, the employee must consider what he's suing for. For instance, maybe the written contract stated that the employee would be there for five years, unless there was "good cause" to fire him. The employee doesn't think he's done anything wrong.

This is the most common situation. The employer said there was good cause to terminated and the employee says there was no good cause. (See above discussion of the Essential Term of the Implied Contract.)

Here, the employee's claim is that contract was breached for the following reason:
  1. The contract said no termination without good cause.
  2. There was no good cause to fire the employee.
  3. The employee was fired anyway.
Just like the "good cause" determination discussed above when there is a written contract, the employee must look at the contract itself to determine if the employer has breached it.

But how does the employee look at something that isn't written down?

Employee Handbooks
Most often, the "terms" of the implied contract can be found in an employee handbook. For example, the handbook may have a "progressive discipline policy" (see discussion above), which states that employees are to be given warnings for certain infractions before they are fired.

If the employee can establish that there is an implied contract, and that one of the terms was that the employer would follow the progressive discipline policy in the handbook, the employee can point to the handbook and treat it like a written contract. He can look at the language of the policy and see if the employer has failed to follow it.

Oral Contracts
It is possible to have an oral contract concerning your employment; however, it may not be enforceable. Some contracts must be in writing to be enforceable.

Confirm In Writing
The major problem with an oral contract is that it is hard to prove. If what you are asking for is important, ask your employer to confirm it in writing. It is important to note that many executive contracts are in writing.

The Burden Of Proof
The best thing to do if you believe you have an oral contract with your employer that the employer has breached is to call an attorney. However, don't be surprised if the attorney doesn't take your case if you don't have proof of the oral contract.

If it only comes down to your word against the employer, you will probably lose because "you" have "the burden of proof."

Breach of Contract

Implied Contracts
Generally: "At-Will" Employment
Employees in Kansas and Missouri are generally "at-will". This means they can be hired or fired at any time, with or without good cause. This means an employer can fire someone just because he doesn't like him.

If someone is fired because of their race, gender, national origin, or other reasons such as those, it is illegal discrimination. For discussions of illegal discrimination, see the corresponding sections listed at the homepage.
Creation of a Contract
There are three types of employment contracts:
  1. written
  2. implied, and
  3. oral.
Written contracts will be discussed in this section. Please also see the related section: Oral & Implied Contracts.

Written Contracts
Written employment contracts are very rare. Usually, only sports starts, actors and highly-paid executives have them. It is important to note that many executive contracts are in writing. If the company breaks its contract with these employees, the employees may sue for "breach of contract." For a discussion of when these circumstances exist, see below, under Terms of the Written Contract.

Union Employees
There is another class of employee who always has a written contract. This is the union employee. Union employees have a union contract. If the employer breaches the contract, the union member may sue.

However, before the union member may sue, he must first pursue his "administrative remedies." This includes grievance procedures, arbitrations, and other processes that may be in the union contract.

Terms of the Written Contract
A written contract can have an unlimited numbers of "terms" or "conditions." For instance, one term might be that the employee will be employed for five years. This means he can't quit and can't be fired.

But there are always exceptions to a term regarding length of service. The most common is termination for "good cause."

Employee's Reason for Suing
An employee who is thinking of suing under a written contract probably has one of several problems
  1. the employer fired him, or
  2. the employer isn't paying him what he owes him.
  3. the employer is failing to give promotions.
Good Cause for Termination
Even an employee with a written contract, which states he will be employed for a certain length of time, can almost certainly be fired for "good cause."

To understand "good cause", the employee must consider what he's suing for. For instance, maybe the written contract stated that the employee would be there for five years, unless there was "good cause" to fire him. The employee doesn't think he's done anything wrong. He thinks there is no "good cause" to fire him.

This is the most common situation. The employer said there was good cause to be terminated and the employee says there was no good cause.

Here, the employee's claim is that the written contract was "breached" (broken) for the following reason:
  1. The contract said no termination without good cause, for five years,
  2. There was no good cause to fire the employee,
  3. The employee was fired anyway.
In this circumstance, the argument about whether or not there was good cause will probably come down to looking at the contract itself. A written contract that only allows for termination when there is good cause probably defines what "good cause" is.

For instance, the contract might say that taking company property is good cause for termination. The employee may think that taking an old and unused peace of property is not a big deal. If the employee takes the property, there is good cause. The employer probably views this as stealing.

Damages in Employment Law

When an employee sues for discrimination, harassment, because he has been fired, or another reason related to his job, there are different things he can recover for.

Damages for Breach of Contract
If an employee is fired in violation of an express or implied contract, he may sue only for his lost wages and benefits.

He cannot sue for emotional distress.

He can recover for what he will lose in the future, but these damages only continue for a reasonable time. In other words, if the employee could get a similar job the day after he is fired, his future lost wages and benefits are zero.

Discrimination and Harassment
In Kansas and Missouri, if the employer has fired the employee (or if the employee has been forced to leave or was never given the job) because of discrimination or harassment, the employee can recover (sue) for the following:
  1. Past lost wages.
  2. Other past benefits. (example: car allowance).
  3. Future Lost Wages and Benefits. (the amount of wages and benefits that will be lost in the future). However, see "Mitigation", below.
  4. General Damages. This includes emotional distress and pain and suffering.
  5. Punitive Damages. This is an amount of money designed to punish the employer and make an example of him.
  6. Attorneys Fees and Costs. This is what the employee spent on lawyers to sue the employer.

Whistle Blowing and Similar Situations If an employee is fired for telling on an employer who is breaking the law, the employee may recover the following:
  1. Past lost wages.
  2. Other past benefits. (example: car allowance).
  3. Future Lost Wages and Benefits. (the amount of wages and benefits that will be lost in the future). However, see "Mitigation", below.
  4. General Damages. This includes emotional distress and pain and suffering.
  5. Punitive Damages. This is an amount of money designed to punish the employer and make an example of him.
  6. Attorneys Fees and Costs. These may or may not be available, depending on the circumstances. This is what the employee spent on lawyers to sue the employer.
Mitigation
The employee who is fired must "mitigate" his damages. This is true whether he is fired for discrimination, harassment, breach of contract, or any other reason.

What this means is that the employee has to try to find another job. He cannot just decide to never work again and have the company pay for it.

The one exception to this is when the company's bad actions make it impossible for the employee to return to work. For example, many sexual harassment victims have trouble going back to work for men. This means that it often takes them longer to find another job. They can still recover damages for their lost wages during the period it takes them to find another job.

If the employee simply cannot find a job, he or she can recover lost wages for this period. However, the employee will be required to show that he or she really tried to find a job, and couldn't.

Federal vs. State Law
Employees can recover under the Federal Title VII Law for everything they can recover under State Law.

However, there are caps on damages in the Federal law. For example, under no circumstances may an employee recover more than $300,000.00 in a sexual harassment lawsuit. This amount includes all the types of damages.

In Missouri, under State law, the amount the employee may recover is technically unlimited. Kansas law is different, though, with much greater limits on damages recoveries than exist under Federal law.

It is therefore very important for a potential litigant to consider under which law he or she wishes to proceed.
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