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Wrongful Termination or 'At-will'?

Posted By Emily Ghant (Johnson), Tuesday, November 4, 2014
Updated: Wednesday, November 12, 2014

Hello, my name is Michelle LeGault and I handle employment law matters for employees and companies.   I have had the pleasure of serving as a Member-At-Large of the Atlanta Bar Association Lawyer Referral & Information Service (“LRIS”) Board of Trustees since June 2011.  I often get calls from potential clients who want to know if they can sue their former employer for “wrongful discharge”.  But is this possible in Georgia?  Read on to learn more.

 

Can you sue your former employer for “wrongful discharge”?

According to the National Conference of State Legislatures, “[e]mployment relationships are presumed to be ‘at-will’ in all U.S. states except Montana.  The U.S. is one of a handful of countries where employment is predominantly at-will.  Most countries throughout the world allow employers to dismiss employees only for cause.   Some reasons given for our retention of the at-will presumption include respect for freedom of contract, employer deference, and the belief that both employers and employees favor an at-will employment relationship over job security.” (http://www.ncsl.org/research/labor-and-employment/at-will-employment-overview.aspx, last accessed 10/22/14)

 

Thus, Georgia, like the great majority of states in the U.S., is an “at-will” state.  This means that an employer can terminate an employee for a good reason, a bad reason, or no reason at all, provided that the termination does not violate anti-discrimination or other relevant statutes.  Likewise, an employee is free to quit for any reason or no reason.  That is, the state of Georgia generally does not impose any restrictions on the ability of an employer to terminate an employee.  There are exceptions for certain classes of employees, such as tenured public school teachers and others working under merit systems, as well as exceptions for engaging in statutorily protected activities such as serving on a jury. 

 

Most employees in Georgia are employed “at-will” and may quit or be fired at the whim of either party.  There are no public policy exceptions in Georgia to the at-will doctrine.  Any lawsuit that an employee may have legal and factual grounds to bring for “wrongful discharge” would be an action for breach of contract; there is no tort (with their attractive unlimited jury damages and potential punitive damages) for wrongful discharge in Georgia.  Breach of contract damages are generally limited to actual damages resulting from the breach.  Punitive damages are not allowed for breach of contract.  Moreover, an employee suing his former employer for breach of contract has a duty to lessen the damages from the employer’s breach.  This is called the “duty to mitigate”.  If the contract of employment is oral, the employee must file suit within four years; for written agreements, the employee has six years within which to file suit.

 

Certain highly placed executives may have a written employment agreement for a specified term of employment which spells out in what circumstances the company may terminate the employment relationship and/or under what conditions the employee may resign.  Those are far and away the exception, and whether a terminated employee may sue her company under such circumstances will largely depend on the terms of the written contract. 

 

When I get calls from potential clients who believe they have been “wrongfully discharged”, I delve into the facts leading up to and surrounding the separation of employment.   I want to know the potential client’s age, gender, ethnic origin, race, religion, disability status, gender identity, pregnancy or lactation status, and any other category protected or potentially protected by state and/or federal law.  I also want to know whether they were recently out on leave of any type, what their performance history has been, including any formal performance evaluations, and whether their unit or company has undergone any changes in management or structure.  Oftentimes what I hear are stories about employees who were treated unfairly but lawfully by their supervisors.  However, sometimes, the facts appear to give rise to one or more claims under the Family Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), Title VII of the Civil Rights Act, or another anti-discrimination statute. 


If you believe that you have been a victim of employment discrimination or feel that your rights as an employee has been violated, please call Atlanta Bar Association's Lawyer Referral and Information Service at 404-521-0777.

 

Tags:  ADA  EEOC  employee  employer  employment discrimination  FMLA  labor law  work  wrongful termination 

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