A discharge from your job may be followed by significant financial, emotional, and reputational consequences.  Whether you can find a court or investigator to review the discharge depends on your employment status during your employment.  Employment status is significantly determined by factors such as who you work for, the length of the employment, and whether the duration of your employment relationship was indefinite.

On a continuum of job protection, the lowest level of protection is an employment at will employment relationship.  The higher end of the continuum is represented by public employees,  such as federal career employees who have successfully completed their probationary period.  Employees with written contracts with their employer, may have specific procedural protections in their contract and they may be able to sue for breach of contract in the event there are any violations of the written agreement.  Employees covered by collective bargaining agreements may have specific procedural guarantees for processing adverse actions.  We will address public employment protections at a later time.

Utah courts have held that an employment relationship entered into for an indefinite period of time is presumed to be at-will and gives rise to a contractual arrangement where the employer or the employee may terminate the employment for any reason, except as provided by law.[1]   The Utah Supreme Court has held that an employee may overcome an “at will” employee status by showing that (1) there is an implied or express agreement that the employment may be terminated only for cause or upon satisfaction of another agreed-upon condition; (2) a statute or

regulation restricts the right of an employer to terminate an employee under certain conditions; or (3) the termination of employment constitutes a violation of a clear and substantial policy. [1]

In Peterson v. Browning[2], the Court recognized a tort action for a wrongful termination in violation of a clear and substantial policy in a case involving the discharge of an employee who was discharged  for refusing to commit an illegal act.   The Court created a public policy exception to the at-will employment rule in Utah.[3] The Court held that employer actions falling within the public policy exception typically involve termination of employment for (1) refusing to commit an illegal or wrongful act, (2) performing a public obligation, or (3) exercising a legal right or privilege  In Ryan, the Court held that employers have a duty not to terminate any employee, `whether the employee is at-will or protected by an express or implied employment contract,’ in violation of a clear and substantial public policy.”[4]  To prevail on this public policy tort claim, the employee has to establish that (1) the employee’s employment was terminated; (2) a clear and substantial public policy existed; (3) the employee’s conduct implicated that clear and substantial public policy; and (4) the termination and conduct in furtherance of the public policy are causally connected.[5]

The facts of your case may present a discrimination claim.   For example, a disabled employee may request reasonable accommodation from the employer to carrying out key duties, or request job restructuring or reassignment to other vacant positions.

Time limitations begin running when the employer’s action is taken against the employee.    Federal employees currently have 30 days to file an MSPB appeal on a discharge and 45 days to

bring an EEO claim.   Private sector employees currently have 180 days to file a discrimination claim with the Utah Labor Commission and 300 days with the Regional EEOC Office.  Limitations to file grievances are a matter of days.  Some employers may require employees to submit employment disputes to mediation or arbitration, based on documents which the employee was required to sign during employment in-processing.  In the event that an employee is presented with a Performance Improvement Period (PIP) or final warning, it may become clear that momentum exists and the employer is signaling the likelihood of further adverse action in the future.   Consultations taken between the employee and counsel, prior to a discharge or further adverse actions, can allow the employee to have some input and control prior to an employer’s final decision to discharge the employee.

This information is not intended to be a substitution for legal advice arising from a review of the specific facts of your case by counsel.  Prior to or after a discharge, it is recommended that an employee promptly speak with counsel to determine available options for moving ahead.