Have you recently lost your job? If so, you might be wondering whether you have grounds for a wrongful termination lawsuit. In Wisconsin, as in other states, employees work at will. This means an employee can generally be fired at any time and for any reason, or for no reason at all. But there are some exceptions. For example, if your Wisconsin employer fires you for discriminatory reasons, in violation of an employment contract, or in retaliation for exercising your rights, you may have a legal claim for wrongful termination.
What If You Were Illegally Fired During the Coronavirus Pandemic?
A shocking number of Americans have lost their jobs as a result of the economic downturn stemming from the COVID-19 pandemic. But what if you were fired during the pandemic? Depending on the reason you were dismissed, you might have a valid claim for wrongful termination. For instance, it would generally be illegal for your employer to fire you:
- in retaliation after you complained about or reported unsafe working conditions, such as inadequate personal protective equipment (PPE), social distancing, or cleaning
- for refusing to work because you had a reasonable belief that you faced an immediate risk of death or serous physical harm due to unsafe working conditions
- for refusing to violate a legal shelter-in-place order
- for taking family or medical leave under state or federal law, including the Families First Coronavirus Response Act (FFCRA) and the federal Family and Medical Leave Act (FMLA) (discussed below)
- because you have a preexisting condition (including your age) that makes you more vulnerable to the coronavirus, or
- because you filed a claim for workers’ compensation benefits for COVID-19.
Also, if you were essentially forced to quit your job because of serious coronavirus-related safety hazards that put you at risk, you might have grounds to sue your employer for “wrongful constructive termination” in violation of public policy. In order to succeed with this argument, you would have to show that your former employer intentionally created or knowingly allowed working conditions that violated public policy (such as laws requiring a safe work environment) and were so intolerable that any reasonable person in your position would have been compelled to resign. (Learn more about wrongful termination in the context of COVID-19.)
Every state’s laws on wrongful termination are different. This article covers some of the common legal grounds you might have for suing your employer in Wisconsin for wrongful termination. But it’s not a comprehensive list of Wisconsin employment rights, which can change as courts issue new rulings and legislators pass or modify laws. To find out the full extent of your legal claims, speak to an experienced Wisconsin employment lawyer.
Under federal law, it is illegal for an employer to fire an employee based on a protected characteristic. Federal law prohibits employers from firing employees based on race, color, national origin, sex, pregnancy, religion, age (if the employee is at least 40), disability, citizenship status, or genetic information. However, only employers with a minimum number of employees must comply with these laws. Most types of discrimination are prohibited once an employer has at least 15 employees. However, the minimum is 20 employees for age discrimination and four employees for citizenship status discrimination.
Wisconsin law prohibits employment discrimination based on race, color, national origin, ancestry, sex, pregnancy, religion, disability, age (40 and older), genetic information, marital status, sexual orientation (including having a history of or being identified with a particular orientation), arrest or conviction record, or military service. All Wisconsin employers must comply with these laws, even those with only one employee.
These laws also make it illegal for an employer to retaliate against you for asserting your rights. For example, if you complain to your company’s HR department that you believe you were passed over for promotion because of your age, your employer may not discipline or fire you for your complaint. Likewise, your employer cannot fire you for participating in an investigation of a discrimination complaint (no matter who made the complaint), testifying in court, or making other efforts to stop discriminatory practices.
Before filing a discrimination or retaliation lawsuit, you must file a complaint with the appropriate government agency. The Wisconsin Department of Workforce Development enforces the state’s laws prohibiting discrimination; the Department has offices in Madison and Milwaukee. In many cases, state fair employment practices agencies will record your complaint with the Equal Employment Opportunity Commission (EEOC), the agency that enforces federal antidiscrimination laws. However, you should check to make sure. If not, you may also have to file a complaint with the EEOC; you can find contact information for the nearest office at the EEOC’s Field Offices page.
If you have a written employment contract promising you job security, you are not an at-will employee. Wisconsin also recognizes employment contracts based on statements in an employee handbook or specific oral promises on which the employee relied. For example, if your employee handbook says that employees will receive a series of progressive discipline steps before being fired, your employer may not be able to fire you without going through those steps first.
Employers may not fire employees for exercising their rights to minimum wage or overtime or for testifying in wage violation proceedings. Wisconsin employees are entitled to a minimum wage of $7.25 an hour. Under federal and Wisconsin law, employees who work more than 40 hours a week may be eligible for overtime. Wisconsin employers that choose to provide breaks of less than 30 minutes during the workday must generally pay employees for that time. Employers also must pay their employees for any time during which they must work, even if the employer characterizes that time as a “break.”
State and federal laws give employees the right to take time off work for certain civic obligations and personal responsibilities. Employers may not discipline or fire workers for exercising these rights. In Wisconsin, these rights include:
If you think you were fired illegally, talk to a Wisconsin employment lawyer. A lawyer can help you sort through the facts and assess the strength of your claims. A lawyer can also inform you of other state or local claims that you may have in addition to those listed above. Whether you want to try to get your job back, negotiate a severance package, or sue your employer in court, a lawyer can walk you through your options and help you decide on how best to proceed.