Coronavirus and Wrongful Termination

Genevieve Carlton, Ph.D

When does a coronavirus layoff cross the line into wrongful termination?

Tens of millions of Americans have lost their jobs due to the coronavirus outbreak. As laid off workers file for unemployment and research their healthcare options, many wonder if their job loss qualifies as wrongful termination.

Take Mark Kanyuk, for example. On April 15, 2020, Kanyuk lost his job as an IT facilities manager. The next month, he filed a lawsuit accusing his employer of wrongfully terminating Kanyuk because of his age. Although Kanyuk never received a negative review during his 25-year tenure at the company, he was nevertheless “the first to go during the pandemic.” 

Kanyuk’s complaint alleges that the layoff “was clearly a pretext for their plan to terminate their older employee in the face of the COVID-19 business downturn.”

“It’s important to stress that the pandemic is not a time for companies to take advantage of the situation and engage in discriminatory behavior that they were holding back from until they had a good excuse,” says D. Maimon Kirschenbaum, Kanyuk’s attorney. 

So when does a coronavirus layoff cross the line into wrongful termination?

Recently laid off employees must keep several things in mind when answering that question. First, wrongful termination only applies if the company fired someone for an illegal reason, such as discrimination or retaliation. Kanyuk’s complaint, for instance, alleges wrongful termination on the basis of age discrimination.

Age discrimination has already been a major problem during the economic downturn. With companies trying to cut costs and moving to online operations, older employees may be the first to lose their jobs. As Forbes warned in April 2020, “A small subset of employers may decide that, even though mass layoffs are not necessary, they will still lay off certain, older employees.”

Second, during the pandemic employers can argue that economic conditions forced the layoffs. In order to prove wrongful termination, the employee must provide evidence that the company had non-economic motivations for targeting specific employees. 

Certain red flags help point to wrongful termination. Consider, for instance, a company that lays off a small number of employees who were all part of a protected class. If the laid off employees were all people of color, older employees, or disabled employees, this could violate discrimination protections. 

Similarly, if an employer laid off employees who recently complained about workplace violations, the firing could qualify as retaliation.

How can laid off employees prove wrongful termination? 

In most cases, employers do not declare their illegal intentions when firing employees. Supervisors rarely announce, “We’re laying you off because of your disability.” 

However, circumstantial evidence can also prove wrongful termination. For example, if an employee complained about unsafe working conditions and their company fired them the next day, it could qualify as wrongful termination. 

The best way to prove wrongful termination starts with a paper trail. Recently laid off workers should keep written records that document their employer’s actions and any discriminatory or retaliatory actions. 

Keep in mind that losing your job may also mean losing access to your company email account or other records. Always make copies and keep backups at home.

Victims of wrongful termination can also contact an employment lawyer to learn if they have a case. 

Learn more about wrongful termination protections in New York and check out the Working Now and Then FAQ on wrongful termination for more.