How to get your job back after being wrongfully terminated

Posted on March 18, 2022

Workers who have been wrongfully terminated may be able to get their job back by way of legal action. If a worker can prove that the discharge was illegal, the court may order the employer to reinstate the worker, in addition to compensating him or her for lost wages.

Employers may also offer the job back in order to settle the claim.

Will filing a wrongful termination claim help me get my job back?

Filing a wrongful termination lawsuit can help a worker get his or her job back. However, it is only a guaranteed outcome of a successful lawsuit in a small set of cases. In some instances, the employer may offer the worker his or her job back in order to settle the lawsuit. In some other cases, the court may order the employer to reinstate the worker to his or her old job.

Workers can be wrongfully terminated if they are laid off or their employer fires them for an illegal reason. Some unlawful reasons for a discharge or layoff include:

• retaliation for filing a workers’ compensation claim,
• employment discrimination against a worker for belonging to a protected class, like those based on the worker’s:
  • sexual orientation,
  • gender,
  • national origin,
  • race,
  • genetic information, or
  • age;
• discharges that amount to a breach of contract or a violation of the employment contract, or
• violations of public policy, like firing someone because they:
  • refused to break the law,
  • performed a legal obligation,
  • exercised a legal right or privilege, or
  • reported a potential violation of labor law or a hostile work environment by coworkers.

Even if the worker is in an employment relationship that makes them an at-will employee, they still have legal rights against these discharges.

Workers who have been illegally discharged can try to get their job back by:

• asking for it back, or
• filing a wrongful termination claim against their employer.

Generally, employers always deny that a particular termination was wrongful. Until proven otherwise, they will think that there was cause to discharge the employee. This often means that simply asking for their job back will get wrongfully fired workers nowhere.

By filing a wrongful termination claim, workers can begin to accumulate the evidence necessary to show their former employer that the termination was, indeed, unlawful. This can pressure the employer into settling the case. Sometimes, employers will try to settle the claim by offering the worker his or her job back. This can happen during the administrative hearing process with the Equal Employment Opportunity Commission (EEOC) or during a preliminary hearing in court.

More often, though, employers will not include reinstatement as a part of a settlement offer. If the wrongful termination claim goes to trial and the worker wins, the court may choose to order the employer to give the worker his or her job back.

When is reinstatement required by law?

There are a few circumstances where reinstatement is required by law after a wrongful termination.

Under federal law, wrongful terminations that violate the Family and Medical Leave Act (FMLA) require reinstatement of the afflicted worker. The FMLA applies to all government or public agencies, including public schools, as well as to all companies that have 50 or more employees.¹

The Act gives covered employees up to 12 weeks of unpaid time off per year to care for a sick family member. Employers have to continue to provide the worker’s healthcare and have to hold the job open for their return. Employers who violate the FMLA by terminating a worker who is exercising his or her right to FMLA leave are often forced to reinstate the worker.

Some state laws may also mandate reinstatement for certain illegal terminations.

In California, for example, the California Family Rights Act mandates reinstatement after a wrongful termination. This Act mirrors the federal FMLA in many respects. However, the California law is broader by providing job protections for:

• sick leave,
• family illness,
• childbirth,
• adoption, and
• foster care arrangements.²

Additionally, a new employment law in California lets workers who have been wrongfully terminated out of retaliation and in violation of the California Labor Code obtain a court order to let the worker return to the workplace while the lawsuit is pending. This law went into effect on January 1, 2018.³

Victims in the California labor force should strongly consider hiring a California wrongful termination lawyer to invoke their employee rights.

How often is reinstatement ordered?

Courts tend not to order reinstatement after determining that a worker was wrongfully terminated and reinstatement is not required by law.

This is because courts are aware that ordering the losing party in a lawsuit to perform specific duties, such as rehiring a worker, has a history of ending poorly. Employers do not like being forced to do something, and may act begrudgingly or in bad faith. They may treat the worker improperly or make it clear that the worker is not welcome after suing the company. Workers who wanted to be reinstated because they loved their job may find that it is no longer bearable because of the new negative attitude towards them.

For these reasons, courts are more likely to award other relief, such as back pay, than they are to order the employer to reinstate the worker. However, if reinstatement is the worker’s goal, a wrongful termination attorney can work to try to make it happen.

Does it matter if I was a whistleblower or was harassed?

It can. The reason for the worker’s wrongful discharge can alter the odds of their being reinstated to their old position.

For example, terminations that violate

• the federal FMLA or
• certain state laws can require reinstatement.

However, other wrongful terminations may make it more or less likely that reinstatement will be offered to settle a lawsuit or be ordered by a court.

Whistleblower lawsuits are extremely unlikely to lead to reinstatement. Employers often see whistleblowers as potential risks who are willing to harm the company. They are probably not going to offer reinstatement to settle the case. Courts may even be worried that whistleblowers would be in danger if they were reinstated to their old position.

Wrongful terminations after quid pro quo sexual harassment incidents, however, are likely more likely to lead to reinstatement. As evidence comes out that a supervisor used his or her position with the employer to extract sexual favors from subordinates, the employer may choose to fire the harasser and offer the victim his or her job back in order to settle the case.

What other damages can I recover?

Workers who succeed in a wrongful termination lawsuit can also recover compensation for their:

• lost wages and benefits,
• back pay,
• emotional distress and suffering, and
• attorney’s fees.

Additionally, in rare cases where the employer behaved very badly, punitive damages may be awarded to punish the employer for its conduct.

However, victims who do not get reinstated will still have to find a new job.

Getting the legal advice of an employment law attorney from a reputable law firm is often the best way to secure a good outcome in a wrongful termination case.

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