Generally, if you get fired, your employer must pay you all wages owed by the end of the first business day after you were fired. If you quit without at least 48 hours advance notice, excluding weekends and holidays, your employer must pay you all wages owed within five days or on the next regular payday, whichever comes first (excluding weekends and holidays).
If you have recently been fired, expect to be fired, or were forced to quit because of an unbearable work situation, you may have some legal remedies to get your job back or to receive compensation. However, depending on the reason for your termination, your remedies may be limited by the “at-will employment rule.” The idea behind this rule is that the employer and the employee understand that either one may end the employment relationship for any lawful reason.
This rule allows an employer to fire an employee at any time and for any reason, unless a contract, a state or federal law, or a constitutional requirement prevents the firing. For example, the employer may fire you if he or she does not like your personality or even the color of your shirt as long as the reason is not illegal.
However, if you have an employment contract, the at-will employment rule may not apply to you. This can be a written contract that says your employer will employ you for a specific time and for a specific pay rate and may state you can only be fired for specific reasons. If your employer has breached the contract, you may be able to sue for the breach and recover your job plus back pay.
Policies contained in employee handbooks and other written company policies generally are not employment contracts, but in some circumstances there may be policies that can be enforced as a contract. Reasonable expectations based on promises made to an employee may constitute an employment contract. These promises could be contained in employee handbooks. For example, if an employee handbook states that vacation will be paid upon termination of employment, that clause will likely be enforced against the employer (and the vacation pay should be paid at the same time final wages are due). If an employer breaches those kinds of promises, you may have a legal remedy for the breach. Such documents must be studied carefully by you and your attorney to determine whether any portion could be considered a contract and whether that may limit the employer’s right to fire you.
If you are a union employee, you are likely to be working under a contract, which is often called a “working agreement” or a “collective bargaining agreement.” A union contract usually requires a fired employee to go through a specific grievance procedure. To protect your rights, it is important that you follow every step in the grievance procedure in a timely manner. Generally, this is accomplished by contacting your union representative and filing a grievance immediately after you are fired, demoted, disciplined or have any other adverse action taken against you. Sometimes, you may have to contact your shop steward as a first step. During this process, take good notes and save copies of all documents.
Even if you go through the grievance process and do not get your job back, you still may have a claim against the employer for firing you in breach of the contract. However, in order to pursue a claim against your employer for breaching the terms of the collective bargaining agreement, you will at the same time, have to bring a claim against your union for violating its duty of fair representation. A union violates its duty of fair representation when it handles your grievance in a manner that is arbitrary, capricious or in bad faith. If you think you may have such claims, consult a lawyer immediately. The law requires some of these claims to be filed within 6 months of the final action on your grievance.
If you are not covered by an oral or written contract and are not a union member, a number of state and federal laws prohibit terminations based on illegal discrimination or other reasons. For example, it is against the law to be fired because of your race, religion, color, sex, sexual orientation, national origin, marital status, age or juvenile record. It is against the law to fire an employee who has reported possible violations of certain state safety and health regulations, or reported violations of the law (whistleblowing) or because the employee has testified at an unemployment hearing. The law prohibits discharging an employee in retaliation for filing a complaint with the Bureau of Labor and Industries or Equal Employment Opportunity Commission, for participating in jury duty, filing a safety complaint, or making use of the workers’ compensation system. In most situations, it is illegal to fire an employee because of his or her disability or because the employer suspects the employee is disabled. In Oregon, it is also unlawful to discriminate an employee for service in the military. There are also protections for employees who ask for or take family or sick leave.
If you believe you are protected by a law like those mentioned, consult an attorney. Some terminations that violate state or federal laws allow the employee to recover attorney fees, in addition to lost wages and other compensation.
Along with legal actions for breach of contract and violation of statute, a fired employee may have a wrongful discharge claim. Even though Oregon generally recognizes the at-will employment rule, certain discharges are considered by the courts to be wrongful. For example, it is wrongful to discharge an employee for resisting on-the-job sexual harassment, or for refusing to sign a statement attacking the character of another employee. The general rule is: it is wrongful to discharge an employee for fulfilling a societal obligation or asserting rights directly related to his or her role as an employee that are guaranteed by contract, statute, constitutional provision or a public policy.
A fired employee may have a claim for intentional infliction of emotional distress. This means an employer or employer’s agent, intentionally or recklessly, subjects an employee to certain conduct intending to inflict the employee with severe emotional distress. This conduct must be beyond the bounds of social toleration; it cannot be merely rude or mean behavior. Depending on the circumstances surrounding your discharge, you may have such a claim.
Finally, if your work situation is so bad that you feel like you are being forced to quit, you may be able to assert one or more of the claims this topic outlines even though you quit instead of being discharged. A court may determine that the employer’s behavior was intended to make you quit and it was reasonable for you to do so under the circumstances. In that case, the court may treat the situation as if you were fired by your employer. Generally, however, it is better to try to stay on the job and correct the situation rather than to quit and sue your employer afterwards.
If you’ve been discharged or demoted and believe you fall into any one of the exceptions to the at-will employment rule, consult an attorney immediately. In many situations, your right to assert a claim is limited to very short periods of time. Some claims must be filed within as little as six months or one or two years. If you do not wish to consult an attorney, you may take your claims to the Oregon State Bureau of Labor and Industries, the Federal Department of Labor or the Equal Employment Opportunity Commission. Personnel at those agencies may evaluate and pursue your claims for you. In some situations, you must go to these agencies before you can go to court.
Legal editor: Diane C. Cady, September 2019.