When is a discharge or termination a “wrongful discharge” as opposed to an unfair discharge?

In Virginia and North Carolina, the vast majority of employees of private companies are employees at will.  “At will” means that the employer and the employee can end the employment for any reason or no reason at all – but the employer cannot end the employment for an unlawful reason.  

While the law in Virginia and North Carolina differs slightly, in general terms, unlawful reasons are those such as refusing to violate the law at the employer’s request, engaging in a legally protected activity, or based on some activity by the employer contrary to law or public policy.  If an employee is terminated because of one of these reasons, then it is a “wrongful discharge” under Virginia and North Carolina law. 

In addition, some statutes specifically protect employees from retaliation by employers. Examples in Federal law include: the Fair Labor Standards Act prohibits retaliation against an employee who makes an internal or external complaint about unpaid overtime or minimum wages; the Civil Rights Act (known as Title VII) prohibits retaliation against an employee who complains about race, sex, and certain other types of discrimination; the Americans With Disabilities Act and the Age Discrimination in Employment Act prohibit retaliation against an employee who complains about disability or age discrimination, and respectively;  the Family and Medical Leave Act prohibits retaliation against an employee for using FMLA leave; the National Labor Relations Act prohibits retaliation against an employee who complains on behalf of employees about work conditions or wages.  

There are also Virginia and North Carolina statutes that contain anti-retaliation provisions.  For example, both States prohibit retaliation against an employee who seeks benefits for Workers Compensation, and North Carolina prohibits retaliation for complaining about wage payments.

Furthermore, Federal law prohibits termination of an employee if the termination is based on the status of the employee, such as the employee’s race, sex, age, or disability.  This can occur if an employee is terminated for violation of a work rule, for example, but an employee of a different race, sex, age, or disability status is not terminated for violation of the same work rule.

But a termination that might be viewed as unfair is not necessarily wrongful.  Employment at will means that an employer can fire an employee for a wrong reason, such as thinking that the employee violated a work rule even though the employee did not violate the work rule, or for an unfair reason, such as firing the employee for a trivial error.  In Virginia and North Carolina, there is no claim for an employee who has been fired “unfairly” – only if the employee has been fired “wrongfully.”