Learn about all your options before suing an employer for wrongful dismissal Legal system is unlikely to get your job back.

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February 17, 1992|By Joyce Lain Kennedy | Joyce Lain Kennedy,Sun Features Inc.

Dear Joyce: We have always found your column helpful. Now more than ever, as both my wife and I look for jobs. I believe my wife was unfairly dismissed. How does she go about challenging her termination other than going to the Equal Employment Opportunity Commission? -- A.W.

Dear A.W.: So many people have hit employers with job termination lawsuits that video coverage of the topic would fill its own TV cable channel.

That may be why your first reaction is to fight back.

But the reality is that the legal doctrine of employment-at-will still reigns in the workplace, meaning employers in private industry generally have the right to fire employees.

My advice before banging on a lawyer's door: Educate yourself about your possible courses of action and how best to pursue them.

Dan Lacey has written a fine book, with the help of specialist attorneys, that should do well in these days of recession terminations. "Your Rights in the Workplace" (Nolo Press, (800) 992-6656, $16) is easy to read and understand.

Although Mr. Lacey's book covers the waterfront of workplace rights, from hiring to firing, it's the firing part that's getting the big play right now. As he explains, "The odds are that you won't be able to use the legal system to completely reverse your firing and return to your job. However, the laws might help you to secure the right to be treated fairly during and after your firing, to secure a positive reference from your ex-employer to help in future job hunting, or to continue coverage under your ex-employer's benefit programs.

"You may even be able to get your former employer to pay you some compensation, or -- if the damage done to you by your firing is severe enough -- to win a large court judgment against your ex-employer through a wrongful-discharge lawsuit."

So why not just ask a lawyer instead of troubling yourself to get the facts straight? Lacey's unsubtle answer: "Understanding how and when laws may protect job security should help you determine whether a lawyer who tells you your dismissal doesn't justify legal action is telling the truth, or is merely skimming the local community of unemployed people for the cases with the highest potential for large damage awards."

What legally can be termed wrongful discharge is not written in stone but five legal theories frequently succeed in challenges to employee firings, says Lacey.

* Violations of public policy, such as getting pink-slipped for serving on a jury or reporting a crime.

* Breach of implied contract, such as an accepted offer of "permanent employment," is actionable.

* Breach of good faith and fair dealing, such as firing an employee on the basis of performance when the true motivation is to replace that employee with one who will work for lower pay.

* Illegal discrimination, such as that based on race, skin color, gender, age, national origin, religious conviction, disability or sexual orientation.

* Defamation, which means the ex-employer damages your good name and reduces your chances for gaining new employment.

Mr. Lacey's book explains blacklisting (it still goes on, he says), how to be your own investigator, what to know before you start a fight, how to package claims and what you must know about plant-closing laws.

This is an important book for workers who will be ushered out of their jobs over the next few years.

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