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Wrongful Termination Defense

Wrongful termination claims can involve various issues and can present various challenges for employers. Our federal defense attorneys represent employers nationwide in disputes with terminated at-will and contracted employees.

Companies of all sizes can face wrongful termination claims from disgruntled former employees. When handled appropriately, these claims can often be resolved fairly quickly. However, when mistakes are made, the litigation process can become protracted, employees can air their grievances publicly, and the costs of defending against employees’ claims can become far more substantial. This is particularly true when mistakes are made early in the process.

At Oberheiden P.C., we defend employers nationwide against employees’ wrongful termination claims. Serving companies in all industries, we handle disputes involving at-will employees, disputes arising out of employment contract terminations, and disputes involving union members. We represent employers in confidential settlement negotiations, mediation, arbitration, and litigation, and we have the capabilities required to efficiently represent employers in all 50 states.

Put our highly experienced team on your side

Dr. Nick Oberheiden
Dr. Nick Oberheiden



John W. Sellers
John W. Sellers

Former Senior Trial Attorney
U.S. Department of Justice

Local Counsel

Joanne Fine DeLena
Joanne Fine DeLena

Former Assistant U.S. Attorney

Local Counsel

Joe Brown
Joe Brown

Former U.S. Attorney & Former District Attorney

Local Trial & Defense Counsel

Amanda Marshall
Amanda Marshall

Former U.S. Attorney

Local Counsel

Aaron L. Wiley
Aaron L. Wiley

Former Federal Prosecutor

Local Counsel

Roger Bach
Roger Bach

Former Special Agent (OIG)

Michael Koslow
Michael Koslow

Former Supervisory Special Agent (FBI)

Chris Quick
Chris Quick

Former Special Agent (FBI & IRS-CI)

Kevin M. Sheridan
Kevin M. Sheridan

Former Special Agent (FBI)

Ray Yuen
Ray Yuen

Former Supervisory Special Agent (FBI)

Dennis A. Wichern
Dennis A. Wichern

Former Special Agent-in-Charge (DEA)

When is a Termination Properly Classified as “Wrongful”?

In order to be properly classified as “wrongful,” an employee’s termination must either violate state or federal law or contravene the terms of the parties’ employment agreement. Employees who simply claim that their terminations were “unfair” or “unnecessary” do not have grounds to pursue legal remedies. Furthermore, even when employees allege sufficient grounds to support a wrongful termination claim, they must still meet their burden of proof. Bare allegations are insufficient to justify liability, and employers cannot be held liable absent clear evidence that they violated the law or breached the terms of an employment agreement.

All of that said, there are still several legitimate grounds for terminated employees to initiate lawsuits against their employers. While many claims will be clearly unsubstantiated, there can also be many situations in which there are legitimate questions, at least initially, as to whether an employee is entitled to back pay, other damages, or possibly even reinstatement. Examples of legitimate grounds for terminated employees to pursue wrongful termination claims against their former employers include:

  • Discriminatory termination based on sex, gender, race, color, ethnicity, national origin, age, genetic information, pregnancy, or any other protected characteristic
  • Termination in violation of the Family and Medical Leave Act (FMLA) or other job-protected leave statute
  • Termination in violation of the Worker Adjustment Retraining and Notification (WARN) Act
  • Retaliatory termination of a whistleblower
  • Retaliatory termination of an employee who filed a personal injury claim or a claim for workers’ compensation benefits
  • li>Breach of an employment contract

These are all very different types of claims (and this list is not exclusive), so it is imperative that employers gain a clear understanding of their former employees’ allegations prior to taking responsive measures. Making assumptions and attempting to defend against the wrong allegations could not only lead to delays in executing an appropriate defense, but it could potentially give rise to questions about other possible violations as well.

Successfully Defending Against a Claim of Wrongful Termination

Defending against a wrongful termination claim requires a multi-step approach, with each step being executed or overseen by the company’s outside litigation counsel. At Oberheiden P.C., we have had significant success defending employers in litigation by following an approach that entails:

1. Assessment of the Grounds for the Employee’s Wrongful Termination Claim

Determining why the employee feels that he or she has been wrongfully terminated is the first step toward assessing the validity of his or her allegations and assessing what responsive measures will be necessary. While this should be clear from the employee’s complaint, in our experience, getting to the bottom of former employees’ allegations can often prove difficult. However, it is also extremely important; and, until you know why your former employee believes that his or her termination was wrongful, it will not be possible to develop a strategic response.

2. Investigation of the Terminated Employee’s Allegations

It is also critically important to conduct an internal investigation as soon as possible. This is particularly true in cases involving allegations of discrimination or retaliation, although there will be an investigative element to any wrongful termination defense. Generally, this investigation should be conducted by outside counsel, as this will not only ensure that the investigative process is protected by the attorney-client privilege, but it will also allow for appropriate controls to be implemented in order to prevent flaws and oversights from threatening the effectiveness of the process.

3. Interpretation of the Relevant Statutory or Contractual Language

In parallel with conducting a factual investigation, your company’s outside litigation counsel will also need to review the statutory language or contractual language underlying the terminated employee’s allegations. Your company’s attorneys will need to parse relevant case law as well in order to determine whether and to what extent the employee’s claims may have a sound legal basis. By combining the information obtained during the internal investigation with your attorneys’ assessment of the legal issues involved, it will then be possible to discern your company’s path forward.

4. Development of a Viable Defense Strategy

Developing a viable defense strategy involves putting all of the pieces together and assessing your company’s opportunities and risks in light of the unique circumstances involved. There will be defenses available in all cases; however, the nature of these defenses and the extent to which they provide full or partial protection will depend on the volume of evidence that exists to support and counter the terminated employee’s allegations. Ultimately, decisions regarding strategy must take all pertinent legal, financial, and practical considerations into account, and they must be focused on securing the best possible outcome for the company long-term.

5. Execution of the Defense Strategy in the Appropriate Forum(s)

Once you have a defense strategy, it is time to execute. Depending on the nature of the dispute and the circumstances involved, this could mean working toward an informal resolution (i.e. a confidential settlement), pursuing mediation or arbitration, or defending against the terminated employee’s allegations in federal district court. Certain statutes (and many employment contracts) require the use of alternative dispute resolution (ADR) methods as a precursor or substitute to litigation, and these methods can facilitate favorable and cost-effective results in many cases. However, prior to pursuing a particular method of resolution, employers must thoroughly evaluate their options with the advice of outside counsel, and they must make informed decisions based upon all relevant factors.

When Should Employers Settle Wrongful Termination Claims?

In some cases, it may seem most cost-effective to simply settle the terminated employee’s allegations and move one. However, prior to pursuing settlement negotiation, it is imperative to consider the potential risks involved in not defending against the employee’s claims. If news of the settlement spreads, could this lead to a wave of similar allegations? Has the employee misappropriated company assets, and could a counterclaim be necessary? Could it actually be more cost-effective to build a defense and convince the employee (and his or her plaintiff’s attorney) that the allegations lack merit? These are all important questions that need to be answered before company leaders simply turn their attention to moving on.

What if the Evidence Supports a Former Employee’s Allegation that He or She was Wrongfully Terminated?

Inevitably, some employers will face situations in which the evidence supports a former employee’s allegations of wrongful termination. Maybe an internal investigation reveals that his or her supervisor’s decision was racially motivated, or maybe an investigation reveals that a manager thought he or she was doing the right thing by terminating the employee after he or she filed a complaint against the company. Whatever the facts may be, the employee has a valid claim, and your company faces a high probability of liability if the case goes to court.

Even in this type of scenario, the best approach is still heavily dependent upon the particular facts and circumstances involved. Pursuing settlement could be a good option, but it may also make sense to litigate, at least to an extent. If the terminated employee is not prepared to litigate, or if his or her attorney makes mistakes along the way, opportunities could present themselves for attaining a favorable, and perhaps unexpected, resolution.

What if the Employee’s Allegations are Clearly Unsubstantiated or Insufficient to Support Liability?

On the same token, if an employee’s allegations clearly lack merit or even appear to be fabricated, exposing these issues quickly and without room for question can often facilitate an outcome of no liability. If an internal investigation reveals that the employee’s claims cannot be substantiated, then in many situations it will make sense to go on the offensive and present an overwhelming case for the employee to drop his or her allegations.

Discuss Your Company’s Wrongful Termination Defense with a Senior Attorney at Oberheiden P.C.

Our firm represents employers nationwide in wrongful termination matters. If you have questions or would like more information about our employer defense practice, we encourage you to get in touch. To speak with a senior defense attorney at Oberheiden P.C. in confidence, call 888-680-1745 or request a free case assessment online now.

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