What If They Lie About Why I’m Fired? Or Refuse to Say Why?
At will employment means you can be fired for any LEGAL reason, which technically includes “no reason,” at any time, with or without notice. Forty-nine U.S. states are “At Will.” This means the vast majority of employees can be fired for “any reason.”
As a wrongful termination lawyer, I have seen people get fired for every reason you can think of. Yes, that includes “no reason.” But the myth and the fear around At Will employment is completely opposite of the truth.
Because the reality is that most employers will lie about why you were fired if they are worried about getting sued.
Let’s address some of the most incorrect statements I’ve seen lately:
MYTH: “All they have to do is refuse to say why you are fired, then there’s nothing you can do.”
FACT: Refusing to say why you were fired is suspicious. No one gets fired for no reason. There will always be a reason. The issue is finding out what the real reason was and whether it was illegal.
MYTH: “They can just make up a reason, then it’s your word against theirs and you will lose.”
FACT: When an employer makes up a fake reason to fire you, we call this “pretext.” Pretextual firings are the most common way employers cover up a wrongful termination. In that case, the lawsuit becomes a battle of credibility. If the reason they offered for firing you doesn’t make sense, it probably isn’t true.
In short, I typically see two kinds of excuses from employers when I pursue a wrongful termination case in an At Will state:
1. “It was At-Will, so we don’t have to say why.”
2. “We fired them for poor performance.”
Remember that the employer’s word is not gospel. Most of these corporate losers are liars, and as a lawyer, my job is to prove when they are lying. An employer doesn’t get away with breaking the law simply because they don’t confess.
So with that in mind, let’s talk about Araceli’s case. Brace yourself, because there is mucho-cringe in this one.
Creepy Married Coworker
“. . . that’s when I told him married men shouldn’t speak that way to women at work,” my client said.
She was a beautiful young woman named Araceli. A couple of weeks before our appointment, she had been fired for “no reason” in an At Will state (California).
But something was wrong.
Araceli had been getting creepy vibes from one of her male coworkers, Dylan, for a while. It was merely annoying in the beginning:
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In the morning, Dylan always asked her to get coffee with him, which she politely declined.
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Dylan stole items from her desk, like pens and notepads. He held them “prisoner” until he got his “ransom” which happened to be a hug. When Araceli refused, he settled for a high-five.
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Staring. Lots of weird staring.
It was cringey behavior to say the least, and it was made much worse by the fact that Dylan was married. He’d been teased for being “obsessed” with Araceli by other coworkers, which he shrugged off by saying he was just being friendly.
But Araceli hated it. She reported Dylan to HR in the past, but they agreed he was just being friendly, which made Araceli feel alone in the situation.
“He got defensive when I called him out. It was just so annoying,” she said. “I just wanted to do my job. I was totally not attracted to him, like not even a little bit. And he was married. I’d be so pissed if my husband treated a woman the way he treated me.”
“So what happened after you told him off?” I asked.
“I think he reported me! I was shocked when I got called into HR…”
We can’t be sure who said what, but somehow, the story that got to HR (and management), was that Araceli was “causing drama.”
That’s right. They blamed poor woman who just wanted to do her work, rather than the horny cringe-lord who kept bothering her.
Toxic Behavior Won’t Be Tolerated.
At the meeting with HR, Araceli was accused of “causing drama” and “gossiping.”
They told her they had reports of her spreading rumors about Dylan, calling him creepy, and making him out to be some kind of creep.
“He is a creep!” Araceli protested. “You need to get him under control, he can’t keep flirting with me and staring at me all the time.”
The HR rep shook her head. “You can’t just throw accusations like that around, it can ruin someone’s marriage, maybe their life. You need to keep your personal feelings out of it.”
Araceli was required to sign a note acknowledging that she had been counseled by HR. Then she was allowed to return to her desk.
One of her pens was missing, but she decided to let it go.
Fired for “No Reason.”
Dylan had some pull with upper management, and he wasn’t afraid to use it. When Araceli got more assertive in refusing his efforts to flirt, he decided to get her out of there.
Dylan reported that Araceli was “toxic” and “not a good fit.” Unfortunately, management took his side. Less than two weeks after her fateful meeting with HR, Araceli’s role was eliminated.
When she asked if this was punishment for complaining about Dylan, HR simply said, “You’re employed at will, and the company doesn’t need a reason to eliminate the role.”
TO WAR
So what could Araceli do? Well, if you listen to the naysayers in my comment sections, they’d have you believe she had no case because the employer didn’t confess.
Respectfully, that is really stupid. It’s no different than saying robbery becomes legal so long as you don’t admit you did it. That’s dumb. So here’s what really happens in a case like this:
1. We sent a demand to Araceli’s employer, and it included a demand for all her employment records.
2. Her records included the write up for being “toxic” as well as some internal notes saying she was “causing drama.” All the write ups occurred after she complained about Dylan.
3. When the employer refused to settle, claiming she was fired “At Will,” we filed a lawsuit for wrongful termination, retaliation, sexual harassment, and gender discrimination.
4. During litigation, we deposed the HR staff who wrote reports against Araceli. In short, they could not explain why no action was taken on her complaint about Dylan. When asked why the complaints against Araceli started after she reported Dylan’s behavior, the HR witness tried to say it was just a coincidence, but she wasn’t very convincing.
5. We uncovered an internal job posting for a role with Araceli’s duties, though the title was different. This disproved the company’s claim that her position was simply eliminated for no reason.
6. Ultimately, we had enough evidence to show that the real reason Araceli was fired was because she reported Dylan, and then Dylan wanted her gone. The company claimed she was fired for “no reason” or, alternatively, for “causing drama,” but they could not support it with credible evidence.
We settled for a confidential amount, it wasn’t enough to never work again, but it was more than enough for Araceli to go to school, move into a new place, and pursue her dreams without worrying about money for a while.
At Will Employment Is the Weakest Defense Possible
Not every case is as cut-and-dry as Araceli’s. The coverups, the lies, and the misdirection from shady employers can be quite sophisticated. The point of today’s article is that At Will employment is not a free pass to break the law.
You should maintain a paper trail of important events at work. Your testimony and your evidence are equally as valuable as theirs. And if their story doesn’t make sense, then your paper trail will control the narrative.
Because you must not forget the golden rule of reasons for being fired: If it doesn’t make sense, it probably isn’t true!
