Can You Be Fired? Your Employment Rights
True or false?
_____ An employer must always have a good, legal reason to fire
an employee.
_____ Your employer is required to give you severance pay if you
get laid off.
_____ Anti-age discrimination laws apply to all employers.
Answers: All of these statements are false.
So what rights do workers have? What laws protect you when your employer fires or lays you off?
"Employment at Will"
Most private-sector workers in the U.S. are employed "at will" by their employers. This means that either the employer or the worker can end the employment at any time, for any reason that is not illegal.
Say that your boss fires you, so that he can hire his brother instead. Your firing has nothing to do with your age, a disability, or your race, religion, or sex. Firing you is not against the law.
This surprises many workers. They are shocked to learn that the law does not protect them from unfair treatment by employers.
Laws forbid only specific actions that employers cannot take against employees. If employers take other actions against you, even if those actions are unfair, they are not illegal.
Not Employed at Will = More Protections
Employment at will does not cover all employees. Some groups of workers are not considered to be employed at will. The law protects them more. Their employers must have a "just cause" for firing them. Examples of just cause are disobeying company rules or bad job performance.
- Government employees
Civil service laws protect local, state, or federal government employees. Such laws usually say that your employer can only fire you for specific, "good cause" reasons. Your employer cannot fire you in order to hire a relative. - Employees with contracts
Workers with formal, written employment contracts can be let go only under a provision spelled out in the contract. Most union members have this kind of employment contract. Some executive-level employees do, too. - Employees in certain states
If you live in Montana, Puerto Rico, or the Virgin Islands, your state limits the employers' rights to fire workers. Employers can only fire workers who are not on probation for good cause. - Employees returning from military service If you return to your job after uniformed military service, your employer must have a good-cause reason to fire you for a certain time after your return. The Uniformed Services Employment and Reemployment Rights Act (USSERA) protects you.
Employment Protection Laws
About two dozen federal laws make it illegal for employers to take certain actions against employees. Most states and some local areas also have laws to protect workplace rights. Almost all states have anti-discrimination laws that cover employers with fewer than 15 or 20 employees. However, neither federal nor state anti-discrimination laws cover most employers with one or just a few employees.
First, we will talk about the federal laws most people have heard of, the anti-discrimination laws.
Employees who belong to certain groups cannot be treated differently than other employees, discriminated against, fired, or laid off because of age, color, disability, national origin, race, religion, or sex.
If you belong to a group of people protected by a law, you are in that law's "protected class."
This does not mean that you cannot be fired. It means that your employer cannot fire you, or take other negative actions against you, because you are a member of your protected class. Your membership in the protected class cannot be the reason for your employer's action. You must be treated the same as employees who are not in the protected class.
Age Discrimination in Employment Act (ADEA)
The ADEA protects you if you are 40 or over and work for an
employer with 20 or more employees.
This law promotes employment based on ability, not age. It prohibits hiring and firing decisions based on age. The ADEA also forbids mandatory retirement at a certain age for nearly all employees.
Many state laws forbid mandatory retirement for small employers not covered by the ADEA.
Americans with Disabilities Act (ADA)
The ADA protects you if you work for an employer with 15 or more
employees and have a disability, are perceived to have a
disability, or because of your relationship with a person with a
disability.
Under this law, you are disabled, at any age, if you have a physical or mental impairment that limits you from carrying out a major life function. You must be able to do the essential elements of your job, either with or without job accommodations.
If you meet those definitions, the ADA requires employers to treat you similarly to workers who are not disabled and to make reasonable accommodations for your disability.
Title VII of the Civil Rights Act
Title VII protects you if you are a person of any color, gender,
national origin, race, or religious belief, and you work for an
employer with at least 15 employees.
Title VII prohibits employment discrimination.
In addition to these three anti-discrimination laws, there are federal laws that apply to everyone. You do not need to be in a protected class.
- Bankruptcy Act: Your employer cannot fire you if you file for bankruptcy.
- Consumer Credit Protection Act: If you have a debt and do not pay it, your creditor can garnish, or get, some of your pay directly from your employer. Under this law, your employer cannot fire you because of this. (If this happens more than once, the Act does not protect you.)
- Family Medical Leave Act (FMLA): You are entitled to a total of 12 weeks in a year of unpaid leave for certain family and medical reasons.
- Juror Protection Act: Your employer cannot fire you if you are called to serve on a federal jury.
- National Labor Relations Act: Your employer cannot fire you for joining a labor union.
- Other federal laws also protect your workplace privacy, safety, wages, insurance, and other benefits.
Discrimination
Discrimination may occur in three situations:
- An employer treats similar employees differently.
- An employer's actions against an employee are based on prejudice.
- An employment decision seems fair, but it actually has a negative effect on a group of employees in a protected class.
For example, what if an employer lays off all employees without college degrees? On the surface, this may seem fair. But what if almost all the employees without degrees are African American, while almost all those with degrees are white? The layoff would have an "adverse impact," or unfair effect, on African American employees. They are a protected class under Title VII, so the layoff could be illegal.
The ADEA, the ADA, and Title VII also forbids employers to fire or retaliate against employees who complain about or protest employment discrimination.
AARP Resources
AARP
Litigation - How We Can Help You
Read about AARP legal priorities to see if your situation meets
our criteria for help.
AARP
Litigation - Our Current Docket
AARP's court cases - those currently open and recently
closed.
Simple Justice
The story behind an age discrimination settlement and what it
could mean in your workplace.
Additional Resources
Workplace
Fairness
In-depth information about workplace rights.
Books
Find these books online at Barnes and Noble.com
Your Rights in the Workplace, Attorney Barbara Kate Repa, Nolo Press, 2002. A complete guide on hiring and firing, discrimination, family leave, safety, wages and hours, and much more. Full of specific strategies and resources for protecting yourself.
