It is important to realize that changes may occur in this area of law. This information is not intended to be legal advice regarding your particular problem, and it is not intended to replace the work of an attorney.
Generally, if you get fired, your employer must pay you all wages
owed by the end of the first business day after you were fired. If
you quit without at least 48 hours advance notice, excluding weekends
and holidays, your employer must pay you all wages owed within five
days or on the next regular payday, whichever comes first.
If you have recently been fired, expect to be fired, or were forced
to quit because of an unbearable work situation, you may have some
legal remedies to get your job back or to receive compensation. However,
depending on the reason for your discharge, your remedies may be limited
by the “at-will employment rule.” The idea behind this
rule is that the employer and the employee understand that either one
may end the employment relationship for any lawful reason.
This rule allows an employer to fire an employee at any time and for
any reason, unless a contract, a state or federal law, or a constitutional
requirement prevents the firing. For example, the employer may fire
you if he or she does not like your personality or even the color of
your shirt as long as the reason is not illegal.
However, if you have an employment contract, the at-will employment
rule may not apply to you. This can be a written contract that says
your employer will employ you for a specific time and for a specific
pay rate and may state you be fired only for specific reasons. If your
employer has breached the contract, you may be able to sue for the
breach and recover your job plus back pay.
Policies contained in employee handbooks and other written company
policies generally are not employment contracts, but in rare circumstances
they may be. If the employer breached those kinds of contracts, you
may have a legal remedy for the breach. Such documents must be studied
carefully by you and your attorney to determine whether they can be
considered a contract and whether they limit the employer’s right
to fire you.
If you are a union employee, you are likely to be working under a contract,
which is often referred to as a “working agreement” or
a “collective bargaining agreement.” A union contract usually
requires a fired employee to go through a specific grievance procedure.
To protect your rights, it is important that you follow every step
in the grievance procedure in a timely manner. Generally, this is accomplished
by contacting your union representative and filing a grievance immediately
after you are fired, demoted, or disciplined, or have any other adverse
action taken against you. Sometimes, you may have to contact your shop
steward as a first step. During this process, take good notes and save
copies of all documents.
Even if you go through the grievance process and do not get your job
back, you still may have a claim against the employer for firing you
in breach of the contract. However, in order to pursue a claim against
your employer for breaching the terms of the collective bargaining
agreement, you will at the same time, have to bring a claim against
your union for violating its duty of fair representation. A union violates
its duty of fair representation when it handles your grievance in a
manner that is arbitrary, capricious or in bad faith. If you think
you may have such claims, consult a lawyer immediately. The law requires
some of these claims to be filed within 6 months of the final action
on your grievance.
Even if you are not covered by an oral or written contract and are
not a union member, a number of state and federal laws prohibit discharges
based on illegal discrimination or other reasons. For example, it is
against the law to be fired because of your race, religion, color,
sex, national origin, marital status, age or juvenile record. It is
against the law to fire an employee who has reported possible violations
of certain state safety and health regulations, or because the employee
has testified at an unemployment hearing. The law prohibits discharging
an employee in retaliation for filing a complaint with the Bureau of
Labor and Industries, filing a safety complaint, or making use of the
workers’ compensation system. In most situations, it is illegal
to fire an employee because of his or her disability or because the
employer suspects the employee is disabled. In some areas of Oregon,
it is also illegal to fire someone because of that person’s sexual
orientation.
If you believe you are protected by a law like those mentioned, consult
an attorney. Some discharges that violate state or federal laws allow
the employee to recover attorney fees, in addition to lost wages and
other compensation.
Along with legal actions for breach of contract and violation of statute,
a fired employee may have a wrongful discharge claim. Even though Oregon
generally recognizes the at-will employment rule, certain discharges
are considered by the courts to be wrongful. For example, it is wrongful
to discharge an employee for complying with a public duty, such as
jury duty. Oregon courts have found it wrongful to discharge an employee
for filing a workers’ compensation claim, for resisting on-the-job
sexual harassment, or for refusing to sign a statement attacking the
character of another employee. The general rule is: it is wrongful
to discharge an employee for fulfilling a societal obligation or asserting
rights directly related to his or her role as an employee that are
guaranteed by contract, statute, constitutional provision or a public
policy.
A fired employee may have a claim for intentional infliction of emotional
distress. This means an employer or employer’s agent, intentionally
or recklessly, subjects an employee to certain conduct intending to
inflict the employee with severe emotional distress. This conduct must
be beyond the bounds of social toleration; it cannot be merely rude
or mean behavior. Depending on the circumstances surrounding your discharge,
you may have such a claim.
Finally, if your work situation is so bad that you feel like you are
being forced to quit, you may be able to assert one or more of the
claims this topic outlines even though you quit instead of being discharged.
A court may determine that it was reasonable for you to quit because
of a bad work situation and may treat the situation as if you were
fired by your employer. Generally, however, it is better to try to
stay on the job and correct the situation rather than to quit and sue
your employer afterwards.
If you’ve been discharged or demoted and believe you fall into
any one of the exceptions to the at-will employment rule, consult an
attorney immediately. In many situations, your right to assert a claim
is limited to very short periods of time. Some claims must be filed
within as little as six months or one or two years. If you do not wish
to consult an attorney, you may take your claims to the Oregon State
Bureau of Labor and Industries, the Federal Department of Labor or
the Equal Employment Opportunity Commission. Personnel at those agencies
may evaluate and pursue your claims for you. In some situations, you
must go to these agencies before you can go to court.
Legal editor: Jeffrey D. Jones, February 2009