Contrary to popular belief, employers generally do not have to give a reason or explanation to employees who are being fired. In nearly all states, employment is presumed to be “at will,” meaning you or your employer can end the employment relationship at any time, and for whatever lawful reason. Some employment contracts, however, require that your boss give you a reason.
At-will employment
An at-will employment relationship is one that can be terminated:
- by either party,
- at any time, and
- for any lawful reason.
49 states presume an employment relationship is at-will unless:
- you and your employer agree otherwise, or
- an exception to at-will employment applies to your situation.[1]
If neither of these applies, then you can be terminated whenever your employer wants, and for whatever lawful reason your employer has. Nothing requires your boss to tell you why you are being let go.
The only state in the country that does not presume at-will employment is Montana. Even there, though, you can be discharged for any reason if you are still in a probationary period of employment. Outside of a probationary period, your employer would have to show good cause.[2] They may offer an explanation for your discharge in an attempt to avoid a wrongful termination claim.
Exceptions to at-will employment
There are three main exceptions to the at-will employment relationship. They are when a discharge would:
- violate public policy,
- violate the implied covenant of good faith and fair dealing, and
- breach an implied contract of employment.
If one of these exceptions applies, your discharge can be unlawful.
Under most state laws, some examples of when your boss violates public policy in firing you are when he or she:
- retaliates against for becoming a whistleblower,
- retaliates against for your political activities or speech,
- fires you for complaining about, or participating in an investigation for, workplace harassment or discrimination,
- fires you in an act of discrimination based on your:
- sexual orientation,
- national origin,
- marital status,
- gender identity or expression,
- medical condition, or
- any other protected trait under state or federal law;
- fires you for filing a workers’ compensation claim, and
- discharges you for taking time off for jury duty.
Your boss’ decision to tell you why you were fired or not may have something to do with whether one of these situations applies.
The employment law and wrongful termination attorneys at our law firm have found that employers frequently tell their employees that they are being fired for a lawful reason, when in reality they are being fired for an unlawful one. The explanation offered is often a pretextual one. It is an attempt to convince you that your termination was not a wrongful one so that you do not file a lawsuit.
Some employment contracts require it
Occasionally, an employment contract requires the employer to give you an explanation as to why you are being fired. When this is the case, your boss is obligated to tell you why you are being discharged.
Our employment lawyers have found that these contracts are very rare. Employers tend not to impose contractual obligations on themselves whenever they can avoid it.
Employers may choose to explain your termination
There are a few reasons why employers choose to explain why you were fired, even when they are not legally or contractually obligated to do so. The three most common reasons for explaining your termination are:
- to protect the company’s reputation as a good place to work by being transparent with you,
- in anticipation of an unemployment claim, and
- to avoid a wrongful termination claim.
If you are terminated without a clear reason or explanation, it tells your coworkers that they could be next. Your story may also deter good workers from working for your former employer. This can harm the company’s reputation and make it more difficult for it to get good workers.
Your employer may also tell you that you were fired for a reason that would make you ineligible to collect unemployment benefits. If you are fired for serious workplace misconduct, then you may lose your entitlement to unemployment. This can save your employer some money in unemployment insurance payments.
If you get terminated without an explanation, it may also raise your suspicions. You may be more likely to see a lawyer and explore pursuing a wrongful termination claim.
Additionally, offering a legitimate reason for the termination can help your employer if you do decide to file a lawsuit. Your employer’s offered reason for your discharge will have to be overcome in your legal claim. Only if you can show that it was pretextual can your claim continue to move forward.
According to the Supreme Court of the United States, for wrongful termination claims based on discrimination:
“First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the employee’s rejection. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.”[3]
Our lawyers have found that some common pretextual justifications are vague explanations for your discharge like:
- poor performance,
- violations of company policy,
- company restructuring, or
- absenteeism.
You can always ask why
Were you fired and not given a reason, you can always ask why. Even if your boss or supervisor does not give you any more information or refuses to respond, you will not have suffered a setback.
If they do respond, it can be beneficial to you. Their response can:
- help you understand what happened,
- admit to a wrongful termination, which you can then use as evidence in a civil lawsuit, or
- contradict or conflict with the explanation that you were given earlier, which is a strong sign that the original explanation was just pretextual.
Former employers can mention that you were fired
If you were fired or laid off from your last job and are on a new job search, a recruiter or hiring manager from a potential employer is likely to contact your previous employer. Your former employer can tell your new employer that you were fired from your previous job or the subject of a layoff. They can also say bad things about your job performance to the prospective employer. However, they cannot say false things about you.
The line between saying bad things and saying false things is very fine. Therefore, lots of companies have policies that only allow their human resources department to provide future employers with the dates of employment and the job title of their former employees. This can protect your old employer from facing legal action for defamation.
However, you can expect pointed job interview questions about what happened before receiving a job offer.
[1] See California Labor Code 2922.
[2] Montana Code Annotated 39-2-904.
[3] Texas Department of Community Affairs v. Burdine, 101 S.Ct. 1089 (1981).
