Can they fire me for that!?!

Happy Labor Day!  In honor of the holiday, I thought I would write briefly about what claims an employee has when he gets fired.  Having a claim for getting illegally fired, or "wrongfully terminated" is difficult in North Carolina as it is a "right to work" state.  The basic concept of all employment in North Carolina is that it is "at-will employment."  This means an employer, subject to certain narrow exceptions, can fire you for any reason, even if it is arbitrary and irrational.  On the flip side, you can quit for any reason.  Unless a written contract calls for something different, no advance notice is required from either side.  Giving your employer two weeks notice is a courtesy (and one that you might want to extend if you need a good reference in the future), but not a requirement.  Keep in mind that when you give your employer two weeks notice, he may decide he doesn’t need you anymore anyway and terminate you on the spot. 

There are three major exceptions to the general rule of a wrongful termination.  First, if you have a written contract of employment a termination without cause may be a breach by the employer.  Similarly, if you quit without cause then you may be the the one in breach of the contract.  The contract must specify a definite length of time for the employment.  A contract for "permanent employment" or "employment for life" without additional promises of moving to the place of employment or breaking a strike, is considered by the courts to be the same as "at-will employment."  Read your contract carefully and ask your employer, in writing, what provisions of the contract he claims give him the power to terminate.  Your damages for this type of wrongful termination usually, unless the contract says differently, would be the difference between what you would have made under the employment contract and what your income is at your new job.  If it takes you weeks or months to find a new job, that difference would be the full amount of your former salary, but you have to look for and take any reasonable new job. Otherwise, your former employer would argue before the court that you should have gotten a new job paying the same amount (or better) and therefore he doesn’t owe you anything.  This is called a "failure to mitigate" and it is a concept that extends to many areas of the law, not just for wrongful termination.  You cannot make things worse for the Defendant by your own unreasonable inaction.

The second exception is when an employee is participating in conduct protected by law, or refuses to participate in unlawful conduct.  For example, a truck driver would have a claim for wrongful termination if he was fired for entering a correct driving log, or for failure to falsify a driving log, as required by interstate trucking regulations.  Other examples in North Carolina law would be firing an employee for being in a labor union, filing a worker’s compensation complaint, refusing to work for less than the minimum wage, and reporting for jury duty.

The third exception comes from federal and state statutes that have created exceptions prohibiting employers from discharging employees based on the employee’s age, race, sex, religion, national origin, or disability, or in retaliation for filing certain claims against the employer.  Examples of these statutes are the Age Discrimination Act; The Equal Employment Opportunities Act; and the Americans with Disabilities Act.  If you think that you have suffered some discrimination protected by these statutes, you should first call the U.S. Equal Employment Opportunity Commission, or EEOC.  If you are in Eastern North Carolina, including Wilmington, the local field office is located in Raleigh at (800) 669-4000.  Look on www.eeoc.gov for more information.  If you don’t get a favorable result, it may be time to consult an attorney.