How to know when a firing is actually illegal

By The Office of Scaringi Law posted in Employment Law on Thursday, July 9, 2015.

While most fired employees view their termination as wrongful, the unfortunate truth is that under Pennsylvania law a worker has recourse only under limited circumstances.

When a private-sector, non-union employee is let go, the lion's share of the law is on the employer's side. Many times the best I can do for clients is filing a Pennsylvania unemployment claim and successfully battling any challenge to benefits an employer may make.

There are times, though, when a firing runs afoul of Pennsylvania's "public policy exception.''

At will employment

For most employees in the private sector - other than those fortunate enough to be parties to a private employment contract - a termination that is unfair and mean-spirited is not necessarily "wrongful," as in illegal. In Pennsylvania, private sector workers are considered "at will'' employees, meaning their employer has wide latitude when it comes to firing.

The law allows an employer's will to be imposed to hire, fire and promote an employee. These actions can be taken by an employer for a "bad" reason -- or even no reason at all. As a result, many attorneys who represent employers commonly state that there is no such thing as a "wrongful termination" lawsuit against a former employer in Pennsylvania.

But as an Employment attorney who represents workers, I beg to differ.

I'm talking about the "public policy exception.''

To have a wrongful termination case, an employee must show their boss fired them for a reason that violates a specific law or statute. Additionally, if the firing violates some public policy of the Commonwealth of Pennsylvania - not necessarily a written law or statute - then the termination could also be found to have been wrongful and illegal.

When 'You're fired!' is illegal

Many legal authorities separate the concepts of legally wrongful termination in Pennsylvania into two different categories - statutory and public policy (i.e. judge-created) exceptions.

I prefer to simply combine the concepts under the rubric "wrongful," with the only difference being the source of the legal exception - whether written (statutory) or unwritten (public policy). The reason I do so is because these prohibitions are simply stating the most obvious "public policies" that we, as a society, believe are worthy of protection, with some exceptions declared by legislatures and others declared by judges.

One of the most common examples of the statutory version of wrongful termination would be a firing based upon a discriminatory motive, such as race, gender, age, disability, etc. Non-discrimination laws abound at the federal and state level and are widening in scope. For example, sexual orientation discrimination and genetic discrimination are both relatively recent additions to the non-discrimination canon.

Another statute-based wrongful termination would be a firing that violates the Family and Medical Leave Act ("FMLA"). An "employee" - assuming he/she fits within the act's definition - cannot be legally terminated for any of the following:

* Because of the birth of a son or daughter of the employee and in order to care for such son or daughter.

* Because of the placement of a son or daughter with the employee for adoption or foster care.

* In order to care for the spouse, son, daughter, or parent of the employee, if such spouse, son, daughter, or parent has a serious health condition.

* Because of a serious health condition that makes the employee unable to perform the functions of the position.

* Because of any qualifying circumstance arising out of the fact that the spouse, son, daughter or parent of the employee is on covered active duty (or has been notified of an impending call or order to covered active duty) in the U.S. Armed Forces.

The FMLA protects an employee's basic right to re-employment upon resolution of the employee's situation. For example, should an employee exercise her right to take maternity leave, she cannot be penalized when she returns to work.

Unwritten rules

Not all protections against wrongful termination are found in laws and statutes, however. Several examples of the "public policy," or judicially-created, protections come to mind.

Overall, public policy exceptions to 'at will' employment remain the more fluid of the two forms of "wrongful termination." These exceptions tend to be more in tune with changing societal mores.

For example, at one time employment protection based on a person's sexual orientation was unheard of. Now, however, while Pennsylvania does not have a state law protecting someone from being fired due to their sexual orientation, some municipalities, like Harrisburg, have enacted such ordinances. Businesses located in such a municipality are bound by the local law.

Another recent player in the "public policy" field is obesity. Discrimination based upon obesity is quickly becoming "illegal." Thus, a firing based upon this personal characteristic is likely to be, or will become, illegal in the very near future.

Proving your case

Proving wrongful termination is difficult - but not impossible - because it comes down to showing the motivation behind the firing.

It takes a skilled and experienced employment law attorney to marshal the evidence needed to recognize, extract and prove motives and intent. For example, I often employ a litany of expert witnesses to assist in this regard.

I've been doing so for 30 years. So if you truly believe that your termination was both "wrongful" and illegal, chances are I'll be able to determine whether it's both possible and practical to proceed with your case.

But it all begins with you. If this article describes your situation, then please give me a call.

Working together, we just might be able to fight for your job.

To learn more about how Scaringi Law can help you, call us toll-free at 877-LAW-2555 or email us at


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