A Guide to Wrongful Termination in California
02 Nov 2016
Employees often have difficulty understanding what wrongful termination in California is, and distinguishing between a proper and improper firing by their employer. This is often due to the complicated nature of the employment relationship.
The following article will guide workers trying to determine if they have actionable claims against their employers. This article is by no means exhaustive, and therefore, an employment lawyer should be consulted to answer your questions appropriately.
“At-Will” Employment Does Not Permit Unlawful Firing
California is an “at-will” employment state, this means that when there is no specified term for employment, the employer may terminate an employee at any time at its own will, and the employee may quit at any time at his/her own will. (Lab C §2922). Nevertheless, this rule does not mean that an employer can fire an employee for any unlawful reason or for a purpose that violates public policy.
California law provides that despite the general rule that employers may terminate employees at their own will, they may not terminate employees because they are a member of a protected class, or engaged in a protected activity. A classic example of this is an employee who is fired simply because she is disabled or because of her race.
When Can’t My Employer Fire Me?
An employer may not terminate an employee for any of the following reasons:
• National origin
• Physical disability (FEHA or ADA)
• Mental disability
• Medical condition
• Genetic information
• Marital status
• Sex, gender, or gender identity or expression
• Sexual orientation
• Military and veteran status/military service
• Acting as a volunteer firefighter, reserve peace officer, or emergency rescue personnel
• Political action or activity
• Jury duty
• Family Medical Leave (FMLA/CFRA)
• Retaliation for workplace safety complaints
• Retaliation for wage and hour or overtime complaints, and other labor code violations such as unpaid wages
• Healthcare workers’ exercise of statutory obligations to report apparent victims of abuse or neglect
• Disclosing or refusing to disclose wages
• Having wages garnished
• Voluntary participation in alcohol and drug rehabilitation programs
• Refusing to authorize disclosure of medical information
• Refusing to commit an illegal act
• Refusing to take a polygraph test
• Refusing to participate in the induction or performance of abortions
It can Occur Even in Mixed-Motive Cases
A mixed motive case is when an employer terminates an employee for both a legitimate and an illegitimate reason (i.e., a decision motivated by discrimination.) When impermissible reason (see bullet points above) is a substantial factor in the decision, the termination is considered improper.
If the employer makes a showing that the same decision would have been made regardless (i.e., because of employees poor performance or other legitimate reason), the employee is not entitled to damages but may obtain declaratory or injunctive relief and attorney fees and costs.
Constructive Discharge Can Also Be Improper
Although not formally terminated there are certain situations whereby a voluntary resignation is considered a “constructive termination” which can expose an employer to lawsuits. Constructive termination is a situation where: (1) the employer either intentionally created or knowingly allowed “intolerable” working conditions, (2) the employee who was subjected to these conditions notified the employer of them, (3) a reasonable person would have felt the need to resign in light of the employer’s treatment, and (4) the employee did, in fact, quit because of the intolerable employment conditions (constructive discharge). In other words, the working conditions are so unbearable that the employee has no choice but to quit. Examples of these working conditions may include harassment based on physical disability, pregnancy, gender or sexual orientation, etc.
Can Monetary Damages Can Be Recovered?
Workers can recover (depending on the circumstances): lost wages (both front and back pay), benefits, commissions or profits, relocation and moving expenses, compensation for emotional distress, possible punitive damages. Possible attorney fees and costs, injunctive and declaratory relief.
What Information Should I Gather?
The following information is important for a California wrongful termination lawyer to properly analyze the merits of a claim:
• The correct legal name (as stated on the California secretary of state’s website), the form of the legal entity of the employer, and the principal place of business;
• The nature of the business and information regarding any parent companies or subsidiaries;
• The total number of employees the employer has hired nationally as well as in California;
• The financial state of the company, is it doing financially well or is it on the ropes?
• Has the employer been subject of any other lawsuits filed by its employees?
What Information Will A Lawyer Want To Know About Me?
First, determine if you are a member of a protected class, knowing the following information about your circumstances will help:
1.) Race, color, ancestry;
2.) Country of national origin;
3.) Your age;
4.) Sex or gender, or your gender identity/expression;
5.) The religion you practice;
6.) Whether you have a mental or physical disability;
7.) Your sexual orientation;
8.) Marital status, childbirth, pregnancy, related issues;
9.) Any health or medical conditions you may have or genetic information;
10.) Family status
Second, an employment attorney will want to know more about your relationship with your former employers:
• Work and compensation history with prior employers;
• Have there been legal issues between the person and prior employers;
Third, an attorney will want to know more information about your history with your current employer and will want to look at the following documents/information:
• Application forms signed by you prior to employment;
• Descriptions of the positions that you have held with the employer;
• Your length of employment;
• Promotions, demotions, pay raises, disciplinary actions, etc.;
• Copy of your employee personnel file;
• Copy of your employment contract, arbitration agreement;
• Any kind of assurances given by supervisors or superiors regarding job security;
• Relevant correspondence between you and your employer;
• Copies of personnel policies, personnel/policy manuals, termination guidelines, employee handbooks, and benefit plan information.
Fourth, an attorney will want to gather information about the termination or resignation itself:
If you resigned the attorney will want to know whether you were constructive discharged by looking at some factors such as:
• Whether your employer intentionally or knowingly created or permitted an intolerable or unusually aggravated working condition;
• Whether you actually informed your employer about the adverse working conditions;
• Whether a reasonable employee would have likely resigned because of the employer’s treatment.
If you were terminated the attorney will likely want to know the following information:
• The date of the termination and the events leading up to it;
• The names of the superiors who had the decision making authority to terminate you;
• Any evidence of conduct that was malicious i.e. name calling, defamation, breaking of company policy protections for employees;
• Name, age, seniority, and experience of any employees who after the termination replaced you, or assumed your former job assignments;
• Where did they inform you that you were terminated, was the door open, were other employees present?
Fifth, an attorney will want to know information about the events that took place after your termination or resignation:
• Have you mitigated your economic damages by searching for jobs?
• Do you have or have you had any employment protects?
• Have you held any jobs since your termination, if so have you had any similar problems?
• Have you filed a discrimination claim with a government entity? If so what is the status of the claim?