Have you been wrongfully terminated from your job? Consider these factors…

Have you been wrongfully terminated from your job? Consider these factors…

by | Jan 3, 2022 | Firm News |

South Carolina is what is known as an at-will employment state. At the heart of the concept of at-will employment is the fact that employees may quit a position at any time and for virtually any reason, and employers may terminate employee relationships at any time and for virtually any reason.

Wrongful Termination in South Carolina

While South Carolina is an at-will employment state, there are a number of state and federal exceptions. For example, an employer may not terminate an employee relationship because of the employee’s race, color, gender, disability or religious beliefs, among other things. They also may not terminate an employee currently under contract or an employee who takes advantage of his or her legal rights, such as whistle blowing. When violations occur, the employer can be sued for wrongful termination.

Wrongful Termination Checklist

  • Written Promises: There may be a written promise that says that you have specific job security and cannot be fired. Let’s say that you and your best friend get into a business together and he decides to write in the contract that you cannot be fired under any circumstances because you must do it together. If this is the case, then it would be illegal for him to fire you. Sometimes, people make agreements that state that you can only be fired with good cause. You may be able to enforce a promise in court in front of the judge.
  • Implied Promises: Did your employer make an implied promise to you, such as telling you face-to-face that they will agree to not fire you? Many employers will not make an agreement like this but in some cases, an employer will promise “permanent employment” and you can use this in court. The courts will look at various factors, however, such as the duration of your employment, regularity of job promotions, history of positive performance reviews, and whether or not your employer violated a usual employment practice in firing you.
  • Breaches of Good Faith: Maybe your employer acted unfairly when they fired you. Did they fire you before you were able to collect sales commissions, mislead you about your chances for promotions, fabricated reasons for firing you, or repeatedly transferred you to a dangerous place or position so that you would be frightened into quitting?
  • Violations of Public Policy: An employer is not allowed to violate public policy when they are firing a worker. This means any reason that society recognizes as illegitimate grounds for termination. Some of these reasons include disclosing a company practice of refusing to pay employees, taking time off work to serve jury duty, taking time off work to vote, and serving in the military or National Guard (basically anything that is your right).
  • Discrimination: If you believe that you were fired because of your race, color, national origin, gender, religion, or more, you should speak to an attorney because this is also illegal. However, you have time limits on making a discrimination claim so keep this in mind.
  • Retaliation: Employers are not permitted to retaliate against employees. This means that, if you were engaged in a legally protected activity, that activity prompted your employer to act, and your employer gave you consequences, you can file against them for this.
  • Whistle-Blowing Violations: Whistle-blowing laws protect employees. If an employee decides to report activities that are unlawful or harm the public interest, this is not illegal and not means for firing.

Job References; S.C. Code Ann. §41-1-65

The references that one employer gives another employer concerning a former employee may give rise to a common law action for defamation. A potential claim of defamation may stem from an employer’s providing another with the reasons given for a termination, a negative evaluation of the employee’s work habits, skills, attitude, or general desirability as an employee. Although employment references are generally privileged under the common law, employers have decided to give out no information other than that a particular employee was a former employee, the job title, the dates of employment, and sometimes salary information. In 1996 the South Carolina General Assembly enacted the Job Reference Immunity Statute. Under this statute, if a reference to a prospective employer is given orally, the employer giving the reference may only disclose the former employee’s dates of employment, pay level and wage history.

If, however, a reference request by a prospective employer is made in writing and is responded to in writing, then the former employer may disclose the following information, to which the employee must also have access:

  • written employee evaluations;
  • official personnel notices that formally record the reasons for separation;
  • whether the employee was terminated voluntarily or involuntarily and the reason for the termination; and
  • information about job performance.

Regardless of whether a job reference is given in writing or orally, the immunity provided by the statute is lost if the employer knowingly or recklessly releases false information that defames the former employee.

Payment On Termination; S.C. Code Ann. §§41-10-10; 41-10-50; 41-10- 60

For purposes of wage payment and payment on termination, “wages” includes vacation, holiday, and sick leave payments which are due to an employee under any employer policy or employment contract. Funds placed in pension or profit sharing plans are not considered to be wages. Upon discharge, employers must pay their employees within 48 hours of the discharge, or by next regular payday, which may not exceed 30 days. South Carolina does not have any specific provisions governing payment options in regards to employees who quit, go on strike or pass away. In the case of a wage dispute, the employer must notify the employee in writing of the amount conceded to be due. That amount must be paid as required and acceptance by the employee does not constitute a release as to the balance of the employee’s claim.