A Guide For California Employees Facing Wrongful Termination
16 Feb 2017
Employees often have difficulty understanding what wrongful termination 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 provide guidance to workers trying to determine if they have actionable claims against their employers. This article is by no means exhaustive, and therefore, an employment attorney should be consulted to appropriately answer your questions.
“At-Will” Employment Does Not Permit Wrongful Termination
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 terminated simply because she is disabled or because of her race. Wrongful termination therefore trumps the general rule that employment is “at-will.”
When Can’t My Employer Fire Me?
An employer may not terminate any employee for 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
• 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
Wrongful Termination 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. decision motivated by discrimination.) When impermissible reason (see bullet points above) is a substantial factor in the decision, the termination is considered wrongful. If a showing is made by the employer that the same decision would have been made anyway (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 Wrongful Termination
Although not formally terminated there are certain situation 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.
What Monetary Damages The Can Be Recovered?
Workers who prevail in wrongful termination lawsuits against their employers 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.