What Harvard Law Students Should Know About the Rights of Employees to Litigate Claims of Wrongful Discharge

The common law followed by most states is the so-called “employment at-will” doctrine – that employees can be terminated for any reason. There are many exceptions to the “at-will” doctrine. Discharges in violation of federal or state statutes, for example non-discrimination statutes such as Title VII of the Civil Rights Act, are forbidden. Further many employment agreements, for example collective bargaining agreements applicable to union shops, forbid discharges without “just cause”.

Victims of discriminatory discharge because of race, gender etc., and protected by statute can often enforce their rights by filing charges with the appropriate governmental agency, for example the Equal Employment Opportunity Commission (EEOC) or National Labor Relations Board (NLRB).

Where an employment agreement forbids unjust discharge victims may obtain relief for breach of contract under state law in state court or in federal court where there is diversity of citizenship. Wrongfully discharged employees covered by a collective bargaining agreement usually can seek relief from an arbitrator selected under agreement procedures.

Victims of wrongful illegal discharge can recover damages based on lost wages and benefits e.g. the difference between normal wages and post dismissal earnings. Punitive damages, emotional distress damages and attorney fees may be available where the discharge involves a tort or violation of a statute.

Previously representing individuals in wrongful dismissal cases was a lonely exercise. Most tort personal injury lawyers were unfamiliar with workplace issues. Union labor lawyers were reluctant to represent nonunion individuals. The law governing individuals was uncertain and evolving.

However, a handful of lawyers in 1985 joined together and formed the National Employment Lawyers Association (NELA) (https://www.nela.org/NELA/), dedicated to the rights of non union employees. NELA’s growth paralleled the growth of common law cases filed by individuals – usually victims of wrongful dismissal. NELA provided a home for lawyers for whom traditional bar associations had no role. Gradually tort and contract law opened up for individual employee victims of defamation and breach of employment agreement. Today individual non union employees have many viable common law and statutory remedies which provide substantial damages.

NELA boasts over 2500 members in all 50 states and its annual convention draws over 500 attendees. NELA has a paid professional staff and has filed many amicus briefs in state and federal courts. NELA members have formed state and local chapters in most states and major cities. NELA lawyers continue to successfully advocate modification of out moded common law rules. They seek to preserve and expand statutory remedies and craft new procedures protecting and expanding individual rights.

Paul Tobias, HLS ’58, is the founder of the National Employment Lawyers Association (NELA) and a partner in the law firm of Tobias, Torchia & Simon in Cincinatti, Ohio. He is the auther of many articles and books on employment law.

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