As employment lawyers in South Carolina, we are often asked under what circumstances an employee can be terminated. Most employers and employees in South Carolina are aware that South Carolina is an “at-will employment” state, but not everyone truly understands what it means to hire and work in an at-will state. An employer may believe that because South Carolina is an at-will employment state, it is able to discipline or discharge an employee for any reason. While in theory that is true, there are few protected exceptions. These exceptions are in place to protect employees from unjust termination and give them proper recourse in the event they are wrongfully discharged or disciplined.
What is “At-Will” Employment in South Carolina?
Being an at-will employment state means, essentially, that either the employer or the employee may end the employment relationship without giving either notice or reason. Employers frequently ask our employment lawyers in South Carolina if they need a cause to terminate an employee. Likewise, employees may ask whether their employer can terminate them for no reason. In theory, the short answer to both of these questions is “yes,” but courts in South Carolina have carved out several exceptions to the at-will employment doctrine.
Adverse Employment Actions Versus Termination in South Carolina
In South Carolina, an employer might be liable for taking an adverse employment action against an employee if the behavior of the employee that resulted in the action was protected. However, termination is not the only adverse action in employment law. As experienced employment attorneys in South Carolina, we know that adverse actions can include a decrease in hours if the employee is paid hourly, a demotion, a change in hours to a less-favorable schedule, or a change in job description or duties. An employer is not permitted to take into account an employee’s color, race, sex, religion, disability or national origin when it makes decisions about discipline or termination.
Wrongful Termination or Discharge in South Carolina
While South Carolina is an at-will employment state, an employer may be liable for wrongful termination when discharging an employee. In general, local, state, or federal laws protect the employee’s right to enjoy specific benefits or engage in particular behaviors. Wrongful termination or wrongful discharge can be used as a “catch-all” label for a scenario where an employer discharges an employee but where the employee was protected in taking the actions that gave rise to the termination. Protected actions include:
- Participating in a workplace investigation
- Reporting for jury duty
- Making an OSHA (Occupational Safety and Health Administration) complaint
- Refusing to perform illegal activities (see Public Policy below)
- Requesting a reasonable accommodation for a disability
- Taking legally protected leave (Family Medical Leave Act)
- Being a whistleblower regarding unsafe or illegal activity at the place of employment
- Filing a discrimination, wage, or harassment suit (see Discrimination below)
- Complaining about wages, overtime, or the working environment
There are more specifically named wrongful termination causes of action, which are explored below. Keep in mind that even if a firing or disciplinary action does not fit into one of the below categories, it may still fall under the definition of a wrongful termination.
Discrimination in South Carolina
As employment lawyers in South Carolina, our attorneys frequently give advice on state and federal anti-discrimination laws designed to protect employee’s rights. Many of these laws have been established by the federal government and are explained in greater detail in other articles in this Journal. As previous stated, an employer may not discipline or terminate an employee on account of the employee’s color, race, sex, religion, genetics, disability, national origin, or for being pregnant. An employer also may not fire an employee for requesting a reasonable accommodation pursuant to the Americans with Disabilities Act.
Retaliation claims frequently go hand in hand with discrimination claims. As experienced employment attorneys in South Carolina, we are aware that employees file complaints about employers for alleged violations of laws regarding health and safety, pay, sexual harassment, and discrimination. These complaints can be difficult to respond to as an employer; however, an employer may not terminate or discipline an employee for filing a workplace complaint. This unlawful employment practice is referred to as retaliation. An employer may not retaliate against an employee for filing a complaint concerning the working conditions at the place of employment. If it does, it may be liable for wrongful termination.
Public Policy Exception
The public policy exception to at-will discharge or discipline of employees means that employers are not permitted to fire an employee for reasons that are in violation of public policy. In South Carolina, there are several public policy exceptions that can protect an employee:
- The employee refused to be an active participant in illegal activities of the employer;
- The employee complied with what was asked of her/him in a subpoena; and
- The employee refused to break the law on the employer’s behalf.
While there are currently limited public policy protections for employees, the South Carolina Supreme Court held in 2011 that the determination of public policy protections is within the purview of the court and that the courts could create more public policy exceptions if and when the situation arose.
This article is addressing the exceptions to at-will employment. It may be that terms of employment between an employee and employer are explicit in an oral or written contract. In this case, the employment is not at-will. However, even without a written or oral contract, an implied contract may exist providing terms to the employment relationship regarding adverse employment actions or discharge. For example, if an employee handbook says the employee has three strikes before she will be terminated for a specific action and the employer discharges her after one strike, the employee may have a cause of action for wrongful termination due to an implied contract.
There are specific requirements and disclaimers the South Carolina Supreme Court has set forth to avoid an implied contract between an employer and an employee. Contact an attorney at Gignilliat, Savitz & Bettis, LLP today to review your policies and handbooks.
As in other employment disputes, an employee has the ability to sue the employer for wrongful discharge or adverse employment action. Depending on the action giving rise to the claim, the case may be filed in state or federal court. The remedies the court considers include:
- Back pay
- Other lost wages and benefits
- Punitive damages
- Damages for pain and suffering
- Court-ordered changes to employment practices
- Reinstatement of employment
Do not forget that in addition to the above-mentioned awards, employers will also be paying attorney’s fees to defend their actions as well as other costs incurred in defending the case. Even if the employee loses at trial, the employer will still have paid out of pocket for these expenses.
It is a fact of running a business that some employees are simply not the right fit for the position or for the company. Handling the discharge or discipline of employees properly is essential to avoiding employment disputes. It is crucial for an employer to maintain and retain accurate and clear records of:
- Employee handbooks (current and past versions);
- Records of pay raises;
- Records of disciplinary actions;
- Performance reviews; and
- Employee’s complaints.
Being armed with clear records is the best preparation in the unfortunate event an employer must respond to an employment dispute. If you would like to discuss your company’s discipline and termination policies and actions or your employee handbook, or if you are concerned about a recent interaction with an employee that included termination or discipline, contact an experienced employment law attorney at Gignilliat, Savitz & Bettis, LLP today.