If you have been wrongfully terminated, you may be able to get your job back by way of legal action. If you can prove that the discharge was illegal, the court may order the employer to reinstate you, in addition to compensating you for lost wages.
Employers may also offer the job back in order to settle the claim.
Will filing a wrongful termination claim help me get my job back?
Filing a wrongful termination lawsuit can help you get your job back. However, it is only a guaranteed outcome of a successful lawsuit in a small set of cases. In some instances, the employer may offer you your job back in order to settle the lawsuit. In some other cases, the court may order the employer to reinstate you to your old job.
You can be wrongfully terminated if you are laid off or your employer fires you for an illegal reason. Some unlawful reasons for a discharge or layoff include:
- retaliation for filing a workers’ compensation claim,
- employment discrimination against you for belonging to a protected class, like those based on your:
- sexual orientation,
- gender,
- national origin,
- race,
- genetic information, or
- age;
- discharges that amount to a breach of contract or a violation of the employment contract, or
- violations of public policy, like firing you because you:
- refused to break the law,
- performed a legal obligation,
- exercised a legal right or privilege, or
- reported a potential violation of labor law or a hostile work environment by coworkers.
Even if you are in an employment relationship that makes you an at-will employee, you still have legal rights against these discharges.
If you have been illegally discharged, you can try to get your job back by:
- asking for it back, or
- filing a wrongful termination claim against your employer.
Generally, employers always deny that a particular termination was wrongful. Until proven otherwise, they will think that there was cause to discharge you. This often means that simply asking for your job back will get you nowhere.
By filing a wrongful termination claim, you can begin to accumulate the evidence necessary to show your former employer that the termination was, indeed, unlawful. This can pressure the employer into settling the case. Sometimes, employers will try to settle the claim by offering you your job back. This can happen during the administrative hearing process with the Equal Employment Opportunity Commission (EEOC) or during a preliminary hearing in court.
More often, though, employers will not include reinstatement as a part of a settlement offer. If the wrongful termination claim goes to trial and you win, the court may choose to order the employer to give you your job back.
When is reinstatement required by law?
There are a few circ*mstances where reinstatement is required by law after a wrongful termination.
Under federal law, wrongful terminations that violate the Family and Medical Leave Act (FMLA) require your reinstatement. The FMLA applies to all government or public agencies, including public schools, as well as to all companies that have 50 or more employees.1
The Act gives you (if you are covered) up to 12 weeks of unpaid time off per year to care for a sick family member. Employers have to continue to provide your healthcare and have to hold the job open for your return. Employers who violate the FMLA by terminating you for exercising your right to FMLA leave should be forced to reinstate you.
Some state laws may also mandate reinstatement for certain illegal terminations.
In California, for example, the California Family Rights Act mandates reinstatement after a wrongful termination. This Act mirrors the federal FMLA in many respects. However, the California law is broader by providing job protections for:
- sick leave,
- family illness,
- childbirth,
- adoption, and
- foster care arrangements.2
Additionally, a new employment law in California lets you – if you have been wrongfully terminated out of retaliation and in violation of the California Labor Code – obtain a court order to let you return to the workplace while the lawsuit is pending. This law went into effect on January 1, 2018.3
You should strongly consider hiring a California wrongful termination lawyer to invoke your employee rights.
How often is reinstatement ordered?
Courts tend not to order reinstatement after determining that you were wrongfully terminated and reinstatement is not required by law.
This is because courts are aware that ordering the losing party in a lawsuit to perform specific duties, such as rehiring a worker, has a history of ending poorly. Employers do not like being forced to do something, and may act begrudgingly or in bad faith. They may treat you improperly or make it clear that you are not welcome after suing the company. If you wanted to be reinstated because you loved your job, you may find that it is no longer bearable because of the new negative attitude towards you.
For these reasons, courts are more likely to award other relief, such as back pay, than they are to order the employer to reinstate you. However, if reinstatement is your goal, a wrongful termination attorney can work to try to make it happen.
Does it matter if I was a whistleblower or was harassed?
It can. The reason for your wrongful discharge can alter the odds of you being reinstated to your old position.
For example, terminations that violate
- the federal FMLA or
- certain state laws
can require reinstatement.
However, other wrongful terminations may make it more or less likely that reinstatement will be offered to settle a lawsuit or be ordered by a court.
Whistleblower lawsuits are extremely unlikely to lead to reinstatement. Employers often see you as potential risks who are willing to harm the company. They are probably not going to offer reinstatement to settle the case. Courts may even be worried that you would be in danger if you were reinstated to your old position.
Wrongful terminations after quid pro quo sexual harassment incidents, however, are likely more likely to lead to reinstatement. As evidence comes out that a supervisor used their position with the employer to extract sexual favors from you, the employer may choose to fire the harasser and offer you your job back in order to settle the case.
What other damages can I recover?
If you succeed in a wrongful termination lawsuit, you can also recover compensation for your:
- lost wages and benefits,
- back pay,
- emotional distress and suffering, and
- attorney’s fees.
Additionally, in rare cases where the employer behaved very badly, punitive damages may be awarded to punish the employer for its conduct.
However, if you do not get reinstated, you will still have to find a new job.
Getting the legal advice of an employment law attorney from a reputable law firm is often the best way to secure a good outcome in a wrongful termination case.
Additional reading
For more in-depth information, refer to these scholarly articles:
- Wrongful termination and the expanding public policy exception: Implications and advice – SAM Advanced Management Journal.
- The Legal Consequences of a Wrongful Termination – Constitutional Law International.
- At Will Employment Agreements: New Focus for Shielding Employers from Wrongful Termination Suits – Western State University Law Review.
- Past, Present, and Future in Wrongful Termination Law – Labor Law.
- Demonstrating Failure To Discharge Plaintiffs Duty To Mitigate In A Wrongful Termination Case: An Empirical Approach – Journal of Business of Economics Research.
