In most of the United States employment is "at-will," which essentially means an employer can terminate an employee at any time and for any reason (or for no reason at all), as long as the reason is not illegal. You are not an at-will employee if you have signed a written contract with your employer stating that they can only fire you for good cause or certain types of misconduct. Or you may have a contract — written or oral — that specifies certain procedures that must be followed before you can be terminated. If you are an at-will employee, however, and you have proof that your employer has terminated you illegally, you may have grounds for a wrongful termination case. Federal laws such as those that prohibit employers from discriminating against employees based on race, gender, disability, age and other factors apply in all states.
You will need a thoughtful, experienced attorney to represent you. Wrongful termination cases can last up to two years because of the time required for a state board governing equal opportunity employment and employee rights to conduct an investigation and clear the way for you to file a lawsuit. Attorneys who handle wrongful termination cases usually work on contingency, which means that if they take your case and the court awards you damages after a trial or you settle your case before it goes to trial, they receive a certain percentage of the total amount awarded. The percentage of the contingency fee may vary by firm and geographic location, but 30%-40% is typical, and it’s what Tim Riemann, a partner with Funk Reimann LLP, in Kansas City, Missouri, usually charges. Some law firms do not work on contingency, but instead charge a flat fee or an hourly rate. In these cases, you will most likely be required to pay a retainer, which is essentially a down payment on your total bill. Contingency fees are much more common, however.
When you hire a lawyer on contingency, they work for you free of charge until you reach a settlement or win your case in court and receive an award. Generally, the attorney's firm will cover any court fees or related expenses that may be incurred, then deduct them from the client’s portion of the award when they take their contingency fee.
Applicable employment law
One of the first questions a prospective attorney will ask is what state the wrongful termination occurred in and when it happened. Different states have different employment laws, of course, and they also have different statutes of limitation for how long after the incident occurred a plaintiff can bring a case. In Funk Riemann’s case, being in Kansas City means they work with clients from Missouri and Kansas, so they have to consider different states’ laws and statutes of limitation.
In some lawsuits a fee shift may come into play: This occurs when stipulations of the suit state that the losing party will pay the prevailing party’s legal fees. This may affect the final amount you receive, depending on how your lawyer has structured your contingency agreement.
Before you can sue your employer for wrongful termination, you must file a complaint with your state’s Equal Employment Opportunity Commission (EEOC) or equivalent, which will review and investigate your claims. This can take six months to a year. If your case is found to have merit, the commission will issue a right-to-sue notice; you have 90 days after the notice is issued to file suit. After that, wrongful termination suits can sometimes take up to 18 months to be resolved, says Riemann.
In most cases, an employee will sue for wrongful termination to recover lost wages, lost benefits and sometimes additional factors such as emotional distress. Punitive damages are sometimes sought in cases where the details of the termination were particularly egregious. Riemann says the primary factor is lost wages and benefits.