This article summarizes Oregon’s wrongful termination laws. The information is based on my experience handling these kinds of cases throughout the state of Oregon for plaintiffs and defendants.
What Wrongful Termination Claims Are Not
Oregon law does not protect employees just because a termination was false, unethical, unfair, or poorly timed. Because Oregon subscribes to the “at will” employment doctrine, these reasons alone will not give rise to a wrongful termination claim. Wrongful termination cases in Oregon must be based on: (1) some protected class or protected activity-based discrimination or retaliation; (2) breach of contract; or (3) some other specific legal claim.
Legal Basis for Wrongful Termination Claims
A wrongful termination claim under Oregon law requires an employee to prove that the employer terminated the employee: (1) because of the employee’s status in a protected class (e.g., race, color, religion, sex, sexual orientation, national origin, marital status, or age); (2) because the employee engaged in protected activity (e.g., reporting or opposing unlawful conduct, taking family leave, jury duty, etc.), or (3) in breach of an enforceable employment contract.
An employee who asserts a wrongful termination claim will have the burden to prove their case with admissible evidence. Suspicion and belief alone are not sufficient to prove a case. The strength or weakness of any wrongful termination case depends on a variety of factors and every wrongful termination case is unique.
Protected Class: Oregon and federal law protect employees 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 employee must be able to establish a causal link between membership in a protected class and the employer’s adverse action.
Protected Conduct: Employees who are fired for engaging in protected conduct sometimes also 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 enforceable 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.
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).
Employees who wish to assert a wrongful termination claim against an employer often send a demand letter – usually through an attorney – to attempt to negotiate a settlement of their claims. Employees should always seek assistance in determining: (1) whether to send a demand letter, (2) what to include in the letter, and (3) what other steps are required to protect all relevant legal rights.
Employers that receive demand letters must decide whether to engage in settlement discussions or not. That decision making process is highly fact-specific and will vary widely on a case-by-case basis. Businesses are required to retain counsel in claims filed in state or federal court. See, UPL Advisory Opinion No. 2013-2. However, employers may be self-represented in settlement negotiations and government agency proceedings.
Most wrongful termination claims end up settling, usually via a severance agreement. Settlements can occur at any time during the process. Settlements in wrongful termination cases typically involve an employee signing a written settlement agreement, including a release and waiver of claims, in exchange for a payment of settlement funds and other terms. The parties must agree on settlement terms for a settlement to occur.
Cases that do not settle proceed to a lawsuit or a government complaint. The Equal Employment Opportunity Commission (EEOC) is the federal agency that investigates allegations of discrimination, harassment, and retaliation. The Bureau of Labor and Industries (BOLI) is Oregon’s EEOC equivalent and enforces our state anti-discrimination and anti-retaliation laws. The U.S. Department of Labor (DOL) also investigates certain employment-related cases. While the EEOC, BOLI, and DOL are useful in certain cases, all parties involved in government agency proceedings should be prepared for delays and other drawbacks associated with government bureaucracy and very high caseloads.
A lawsuit is a formal, government-supervised process that parties can use to resolve their disputes. Litigated cases may proceed in state or federal courts depending on the details of the case. Lawsuits provide litigants with discovery rights, motions practice, and a set of rules to that govern the proceedings between the parties. Handled properly, litigation can be a productive and cost-effective process. Handled improperly, it can become a costly and wasteful mess.
In recent years, many employment-related agreements mandate that disputes be resolved by arbitration. Arbitration is a private court-like process 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.