Your Rights If You Lose Your Job

The information below is from the Oregon State Bar's Tel-law service, a collection of recorded legal information messages prepared by the lawyers of Oregon. In addition to being online, the Tel-law service is accessible by telephone at 503-620-3000 or toll-free in Oregon only, 1-800-452-4776. A touch tone phone allows direct access 24 hours a day, 7 days a week. To receive a free Tel-law brochure listing the subjects available call 503-620-0222, ext. 0.

The following information regarding your rights if you lose your job is brought to you as a public service by the lawyers of the State of Oregon. The material presented is general legal information intended to alert you to possible legal problems and solutions.

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 advance notice, your employer must pay you all wages owed within five days, excluding Saturdays, Sundays and Holidays.

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 the at-will employment 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, you may be an exception to the At-Will Employment Rule. 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.

Also, some courts have interpreted employee handbooks and other written company policies to be employment contracts. 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.

Although Tel-Law information is periodically reviewed, it is important for you 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.