Without any doubt, this is the question that I am asked most often. The story generally goes something along these lines….
“I have been working for X company for Y number of years (generally more than three) and have always had good performance appraisals and no disciplinary action. Now, my supervisor is [harassing me, treating me unfairly, changing my job duties, or some other form of unwanted action] and I think I might be fired soon.”
As you may already know, South Carolina is an “at-will” employment state. This means that an employer can fire you for any reason in the world as long as it does not violate a federal or state law. Now, sometimes employees have contracts with employers which changes things. If you have you have an employment contract with your employer, then you are most likely not an at-will employee. I always ask potential clients to give me a copy of any Employee Handbook they have or any contract documents that may have been given to them when they began their job. If you do not have a contract with the company, generally your employer can fire you for about any reason. The old saying goes that an employer can fire you for a good reason, a bad reason, or absolutely no reason at all. While this does not always seem fair, it is the very essence of at-will employment and the law of this state.
Alas, however, all is not lost. Employees do have some protections available under the law. Employers cannot fire you because of your gender (including pregnancy and sexual harassment), race, age, disability, use of FMLA leave, attempts to use FMLA leave, religion, national origin, or because you complained about perceived discrimination of any of the above. Employers also cannot fire you because you complained to them about overtime pay that was owed to you but that you have not been paid for. In South Carolina, it is also wrongful termination if your employer fires you for complaining to the LLR for unpaid wages or for forcing you to break the law in order to keep your job.
I always ask potential clients if they think the unfair treatment they are complaining about is due to any of the above categories. If the answer is yes and you have not been terminated yet, the next step is to complain in writing to your supervisor or your supervisor’s supervisor and to get a lawyer involved. Go all the way up the chain if you need to. If you have an employee handbook, it will likely provide information on the proper party to complain to and the proper method for filing a complaint with the company. A written complaint is always better than a verbal complaint because it can be easily proven. You need to document the complaint in writing and keep a copy of the complaint for your own records. This is very important. Once an employer gets a complaint of this nature, they have a legal duty to conduct an investigation.
Employees are often fearful of what will happen to them if they complain about their employer’s treatment. Some fear repercussions at work if they complain. Federal employment laws were written with this legitimate fear of retaliation in mind and these laws prohibit employers from retaliating against you for complaining about actual or perceived discrimination or illegal employment actions. This is even the case if you complain about discrimination that is being taken against another employer and not against you personally. Despite nearly every employee protection law containing a prohibition against retaliation against the complaining employee, this certainly does not mean that employers do not retaliate against complaining employees all of the time! In the event that your employer does retaliate against you for your complaint, however, you will likely have a stronger lawsuit against the company if that becomes necessary down the road.
Often times you will also need to file a complaint with the Equal Employment Opportunity Commission (EEOC) and let them get an investigation going. I always prefer that clients contact me BEFORE they get terminated because I can help walk them through the steps of a written complaint and get the EEOC process started. If you have already been fired, however, do not fret – all is not lost. You can still file an EEOC complaint and should always speak with an attorney. Another important thing to remember is that if you are thinking of quitting or the company is asking for your resignation, this may prevent you from getting unemployment benefits. You should never quit or resign before speaking with an attorney first because this can greatly impact any potential case you might have. The internet has a great deal of information available about filing EEOC complaints and employment discrimination. The EEOC, the DOL, and the LLR all have quite informative websites, so you should be sure to check those out as well.