A wrongful termination claim is not the same as a wrongful termination lawsuit. It is the step before a lawsuit — the moment a former employee or their attorney reaches out with a grievance, a demand letter, or a charge filed with the EEOC or a state agency. How you respond in those first 72 hours can determine whether the matter resolves quietly or escalates into expensive litigation.
If you receive a demand letter or notice that a claim has been filed, do not call the former employee, send them an email, or try to reason with them directly. Anything you say can be used against you. Route all communication through your employment attorney or HR professional.
Immediately issue a litigation hold: a directive to preserve all documents, emails, texts, and records related to the former employee's employment and termination. Do not allow anyone to delete emails, modify records, or "clean up" files. Spoliation of evidence — even if innocent — can create serious legal liability.
Gather the complete personnel file: offer letter, job description, handbook acknowledgment, performance reviews, disciplinary documentation, attendance records, and termination paperwork. The quality of this documentation is usually the most significant factor in how a claim resolves.
If you do not have an employment attorney relationship, establish one now. Many employment claims — particularly EEOC charges — have deadlines for response, and missing them creates its own problems.
If the termination was for performance reasons, you need documented performance conversations, a clear record of expectations communicated, and evidence that the employee had the opportunity to improve. If it was for misconduct, you need documentation of the specific conduct, when it occurred, who was informed, and the consistency of your response.
The best defense against a wrongful termination claim is the documentation you created before the termination. The second best is working with experienced employment counsel immediately after the claim arrives.
ValuedHR helps small and growing businesses build the HR systems they need without the overhead of a full-time hire.
Let's Talk