How to Prove Wrongful Termination – A Guide for Workers

To prove a case of wrongful termination, you generally have to show that your former employer’s stated reason for the discharge was false, and that your termination was for an illegal reason such as:

• unlawful retaliation,
• discrimination,
• a breach of contract, or
• a violation of public policy.

What is wrongful termination?

Wrongful termination occurs when you are discharged for an illegal reason. Even if you are an at-will employee – meaning that your boss can fire you whenever they want – you are still protected by state and federal wrongful termination laws.

However, it is up to you to show that your discharge was wrongful. The employer will frequently claim that the termination was for a lawful reason, such as:

• poor performance,
• workplace misconduct,
• violation of company policies,
• absenteeism,
• personality conflicts, and/or
• inability to pay you.

Employers will hardly ever admit to firing you for an illegal reason. That is why I conduct a thorough investigation to find all the available evidence that shows it was a wrongful termination.

What kinds of wrongful termination cases are there?

Examples of wrongful termination include an employer:

• violating public policy by retaliating against you for exercising a legal right (such as taking family and medical leave (FMLA), serving on a jury, or whistleblowing),
• committing fraud or misrepresentation,
• discriminating against you based on your protected characteristics (such as race, disability, sex, sexual orientation, pregnancy, childbirth, gender identity, being 40 or over, family medical history, etc.),
• violating an implied covenant of good faith and fair dealing, and
• violating an implied contract for continued employment.

The elements of proving a wrongful termination case will depend on the type of termination. However, in nearly all cases, you will have to show that the employer’s stated reason for the termination is false.

How do I overcome my employer’s reason for firing me?

In nearly all wrongful termination cases, you have the initial burden of showing (called making a “prima facia” case) that there is a causal connection between the illegal reason and your firing. Then the burden shifts to the employer to show that their reason for firing you was lawful. Finally, you have to show that their “lawful” reason is a pretext.¹

To win a wrongful termination case, you must challenge the employer’s story by presenting evidence that refutes it. Therefore, be sure to gather, save and document everything that may be relevant in paper, photographic, or video form. Examples of helpful evidence include:

• your employment contract and any incriminating emails, voicemails, or office memos that indicate you were fired for an unlawful reason,
• client recommendations and past performance reviews to overcome a claim that you were fired for poor performance,
• “comparative evidence” showing that the employer treated you differently than other similarly situated employees, or showing how past employees were fired for similar unlawful reasons that you were fired for,
• proof of punctuality from your personnel file (if you have been fired for being absent),
• if you were fired for alleged sexual harassment involving a coworker, a statement from that coworker that says that no harassment occurred,
• if you were fired for violating company policies, evidence that you were unaware of the policy or that the employer never clearly communicated it to you,
• paperwork or witness statements that show the employer did not follow company policies in the employee handbook for an investigation that led to your termination (such as failing to provide you with warnings or due process, especially if you were fired for something unrelated to your job performance),
• paperwork or witness statements that show the employer took other unlawful actions against you, such as not paying you, using confidential information against you, or switching your job duties without notice, and/or
• witness statements or emails from supervisors or colleagues with knowledge of the unlawful reason that caused your termination.

Another strong piece of evidence in my experience is the temporal proximity between your protected activity and your termination. If only a few days have passed since you exercised one of your rights and your discharge, it is a strong sign that the termination was a wrongful one.

For example: On January 1, 2020, Clark gets hurt on the job. He exercises his rights and files for workers’ compensation that day. On January 3, 2020, he gets fired. The employer claims that he was fired for being late.

Showing that your termination was done under false pretenses can undermine the employer’s credibility. It suggests that the specific reasons given for the discharge do not work and were likely made up and that the real reason for the termination was unlawful. Otherwise, there would have been little reason to make up a reason for the discharge.

Ultimately, you still have to show that the real reason for your termination violated the law.

What are my remedies?

If you win your wrongful termination case, courts may award you the following remedies:

• back pay and front pay, plus interest,
• attorney’s fees plus court costs,
• any other out-of-pocket expenses related to the unlawful termination (“compensatory damages”),
• punitive damages to punish your employer for their behavior, and/or
• possible reinstatement to your job.

The vast majority of my employment law cases settle out of court with a favorable monetary resolution for the terminated employee.

What is the law in California?

Under California’s employment law, proving a wrongful termination claim depends on whether the termination was unlawful because it:

• breached the employment contract,
• breached the implied covenant of good faith and fair dealing, or
• violated a public policy.

Breach of the Employment Contract

To prove a wrongful termination claim based on a breach of contract under California state law, it matters whether the contract was for a specified or an unspecified term.

If the contract said how long employment would last, you have to show the following four elements of the jury instructions:

1. you and the employer had an employment contract that specified how long you would be employed,
2. you substantially performed your job duties or were excused or prevented from doing so,
3. the employer breached the contract with an adverse employment action, and
4. you were harmed by it.²

If the employment contract was for an unspecified term, you have to show the following five elements of the jury instructions:

1. you and the employer were in an employment relationship,
2. the employer promised, by words or conduct, to only discharge you in certain circumstances,
3. you substantially performed your job duties, or were excused or prevented from doing so,
4. the employer discharged you in circumstances other than what the contract allowed,
5. you were harmed, and
6. the employer’s breach of contract was a substantial factor in causing that harm.³

These elements apply to both oral and written contracts of employment.

Breach of Implied Covenant of Good Faith and Fair Dealing

The implied covenant of good faith and fair dealing is that both sides in a contract, including an employment contract, will not interfere with the other side’s ability to benefit from the agreement. In general, this means that neither side can mislead or take unfair advantage of the other.⁴

To prove a wrongful termination claim based on a violation of good faith and fair dealing, you have to show the following six elements of the jury instructions:

1. you and the employer were in an employment relationship,
2. you substantially performed your job duties or you were prevented or excused from doing so,
3. all of the conditions required for the employer’s performance under the employment contract were satisfied,
4. the employer prevented you from benefiting under the contract,
5. by doing so, the employer was acting in bad faith, and
6. you were harmed by the employer’s conduct.⁵

Violation of Public Policy

It is also a wrongful termination to fire you in violation of public policy. Terminations that violate public policy happen when, for example, the employer fires you for:

• refusing to break the law,
• exercising a legal right or privilege, like filing a workers’ compensation claim, taking medical leave, making a claim of a hostile work environment to a supervisor, engaging in union activities, or having a political affiliation ,
• reporting a potential legal violation in the workplace, like pregnancy discrimination or age discrimination, or
• performing a legal obligation.⁶

To prove a wrongful termination case for a violation of a public policy, you have to show the following five elements of the jury instructions:

1. you were employed by the employer,
2. the employer discharged you,
3. the violation of public policy was a substantial motivating reason for your discharge,
4. you were harmed, and
5. your discharge was a substantial factor in causing that harm.⁷

Additional Reading

For more in-depth information, refer to these scholarly articles:

• Wrongful termination and the expanding public policy exception: Implications and advice – SAM Advanced Management Journal.
• The Legal Consequences of a Wrongful Termination – Constitutional Law International.
• At Will Employment Agreements: New Focus for Shielding Employers from Wrongful Termination Suits – Western State University Law Review.
• Past, Present, and Future in Wrongful Termination Law – Labor Law.
• Demonstrating Failure To Discharge Plaintiffs Duty To Mitigate In A Wrongful Termination Case: An Empirical Approach – Journal of Business of Economics Research.

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