Wrongful Termination in Oregon

by Joel Christiansen

If you are reading this article, you are probably researching the viability of a potential wrongful termination claim in Oregon. Only cases that are well-supported by admissible evidence and involve sufficient damages are usually worth pursuing through an attorney (attorney fee shifting statutes may make some smaller cases viable). Cases seeking <$10k, including technical employer violations without significant harm, may be best handled through the Equal Employment Opportunity Commission (EEOC) or the Oregon Bureau of Labor and Industries (BOLI).

This article provides practical information about “wrongful termination” claims in Oregon. The information is based on my extensive experience handling these cases on behalf of employees and some small business employers across Oregon. My office is located in Portland but I handle cases throughout the Willamette Valley as well as central, eastern, and southern Oregon. I have been listed as a Rising Star in Oregon employment law by Super Lawyers every year since 2014. You can find some of my client reviews here.

If you are involved in a wrongful termination matter, I strongly recommend consulting with an attorney who specializes in employment law. I and most other employment attorneys will accept viable plaintiff-side wrongful termination cases on a contingent fee basis (i.e., fees based on % of recovery). You can email us anytime at attorneys@oremploymentlawyer.com or schedule a free initial phone consultation immediately by clicking here. Alternatively, you can call the Oregon State Bar at (503) 684-3763 for referrals to other attorneys.

Wrongful Termination Claims Must Typically Be Based on Protected Class/Activity or Breach of Contract

To have legal standing to assert a wrongful termination claim, an employee must be able to prove that an employer broke a law (e.g., Title VII, Oregon Equality Act, ORS 659A.003 et seq., breach of contract, state common law, Oregon wage and hour law, etc.) Unfair, unethical, false, inconsistent, or contradictory terminations are not necessarily illegal. We frequently receive inquiries concerning non-actionable “harassment,” “bullying,” or “discrimination” that is unrelated to any protected class, activity, or contract. Absent some specific legal violation, this conduct is usually not actionable because Oregon, like most states, is an “at will” employment state. That means an employer can fire an employee or change the terms and conditions of employment for any reason or no reason at all, even if the reason is a poor one. For better or worse, employers are allowed to be overbearing, rude, politically incorrect, and arbitrary in their treatment of employees.

An employee who asserts a wrongful termination claim will have the burden to prove their case with admissible evidence. In most cases, this means that suspicion and belief alone will not be sufficient to prove a case. It requires witnesses, documents, and other evidence.

Oregon law provides remedies for specific “wrongful” terminations, including those: (1) based on a protected class; (2) based on protected activity; and (3) that breach a contract. Generally speaking, unless a termination fits into one of these categories, an employee will not likely have any legal recourse for a termination.

Protected Class: Oregon and federal law protect people who belong to “protected classes.” Protected classes include race, color, national origin, gender, sexual preference, marital status, pregnancy, religion, age, disability, and crime victim status. An Oregon employee may successfully assert a wrongful termination claim against any employer that fires an employee because of an employee’s, or anyone with whom the employee associates’, membership in a protected class.

Protected Conduct: Employees who are fired for engaging in protected conduct may also be able to assert wrongful termination claims. “Protected conduct” includes, but is not limited to: reporting evidence of illegal conduct (evidence of internal policy violations or unethical conduct do not qualify), opposing unlawful employment practices, seeking or taking medical leave, requesting disability accommodations, making a wage claim, filing a workers’ compensation claim, reporting health and safety issues, and testifying in court proceedings.

Breach of Contract: Finally, employees who are terminated in violation of an employment contract may be able to assert a wrongful termination claim against a former employer. The employee will need to establish a written employment contract – and employee handbooks and policies will usually not suffice. For example, in a case I recently handled, my client successfully alleged that the employer violated a term in a written 3-year employment contract that guaranteed the employer would not materially alter the employee’s employment within the contract term.

Pursuing a Wrongful Termination Claim

There are several ways to pursue a wrongful termination claim. As I mentioned earlier, I strongly recommend seeking an attorney’s assistance. In my experience, which has included defending businesses in these claims, employers do not take claims seriously when an employee is not represented by counsel (reasonably so). Unrepresented employees, even those who file government agency claims (e.g., EEOC, BOLI, DOL, etc.), are not typically provided full settlement values on employment claims.

Settlement is the preferred method of resolving any wrongful termination claim. Settlements typically involve an employee signing a written settlement agreement, including a release and waiver of claims, in exchange for a payment of settlement funds. Settlements include severance agreements, which typically include a written release of claims. Settlement/severance, including mediation where appropriate, is best pursued early in the process. It is my personal practice to continually explore settlement opportunities for my clients.

Government agency proceedings are appropriate for some, but not all, cases. I do not recommend that employees file, or employers respond to, any case with significant damages (>$10k) without seeking counsel first. However, in many smaller cases, BOLI and EEOC can provide good results for employees who are willing to be patient. One key issue with BOLI is that employees are held to a higher standard of proof (substantial evidence) than they are in court (preponderance of evidence)

A lawsuit is the go-to judicial mechanism for enforcement of wrongful termination-related legal rights. Litigated cases may unfold in state or federal courts. Many employee wrongful termination cases include claims for costs and attorney fees. A lawsuit may be appropriate even after an adverse finding from BOLI or EEOC. The burden of proof for a plaintiff/employee in court is preponderance of the admissible evidence, compared with BOLI’s significantly higher “substantial evidence” standard.

In recent years, many employment-related agreements mandate that disputes be resolved by arbitration. Arbitration is a private dispute resolution service mandated by private contract. Some contracts even provide for (or, in any event, employers are often willing to discuss) non-binding mediation for resolution of claims. Both parties should pay close attention to employment agreements and policies to ensure compliance with alternative dispute resolution procedures.

There are no publicly available reports of Oregon state court employment lawsuit statistics. Per EEOC statistics, I would guess that the number in Oregon is lower than the national average. For example, Oregon EEOC filings accounted for just 0.2% of all filings. There is also the fact that employment claims nationwide have been decreasing (“Civil rights filings fell 6 percent to 1,887, primarily due to a 15 percent decrease in employment cases (down by 1,753 cases)”, http://www.uscourts.gov/statistics-reports/federal-judicial-caseload-statistics-2014)

Despite this trend, I believe that wrongful termination and other employment litigation will continue in Oregon. Our state’s strong economic growth will continue to raise significant employment law issues (especially those involving whistleblowing, trade secrets/non-compete, employee/independent contractor, wage and hour, etc.) in the coming years.

Damages in Oregon Wrongful Termination Cases

The types of damages an employee will be able to recover will vary widely depending on the exact nature of the legal claims an employee brings. Wage loss can mount quickly in wrongful termination cases. Employees have a duty to mitigate damages by searching for and securing replacement work as soon as possible. Employees may qualify for a broad range of remedies, including economic damages, noneconomic damages, punitive damages, attorney fees, and costs. Some claims however, only provide remedies for lost wages and do not provide for recovery of noneconomic damages (e.g., Oregon family leave act claims).

The amount of damages is always a strong indicator of a case’s settlement value. While juries can and do award noneconomic damages, these awards are typically modest in comparison to the cases that sometimes make headlines. Employees with contained wage loss should form reasonable expectations about settlement value.