Wrongful Termination

Losing your job can be one of the most devastating events that one can experience in life. Lost income can lead to serious financial difficulties that can affect you and your family. But, if the boss simply tells you that your getting “laid off” or has a stated reason for firing you that you don’t agree with or don’t think is the real reason you are being singled out for termination, what legal rights do you have under California law? The answer depends upon your situation and the circumstances leading up to and surrounding your discharge of employment. While there are numerous exceptions to the “at will” rule, some of the more common scenarios where an employee should at least consult with a wrongful termination of employment attorney involve the following questions:

Does the employee have a written contract of employment that appears to be violated by my firing?

The presumption that an employee is “at will”, can be altered by a written or oral agreement between the employee and the employer. The existence of such an agreement, however, must be objectively proven and not subject to beliefs that have not been clearly expressed. What does this mean? Some employees (including those in certain industries and many professions), are offered a written agreement spelling out the terms and conditions of the employment relationship. For example, an employer may offer a written offer of employment that states the amount of money to be paid and other terms of employment. Unfortunately unless the contract also specifies the exact length of employment (e.g. “five years”), it may not be enough to overcome the “at will” presumption. If it does specify a length of employment, though, firing an employee prior to the end of that term would require a showing of a “willful breach” of the agreement by the employee, “habitual neglect of duty”, or “continued incapacity to perform”. California Labor Code 2924. Likewise, a written agreement to only terminate an employee based upon “good cause” even if no fixed time is stated, may require showing that the employer had “good cause” (as defined by the agreement). In addition to express (written) agreements, implied agreements not to terminate are also enforceable (although more difficult to prove). This would require lack of a written acknowledgement of “at will” status (which most employers require) and verbal representations and/or conduct that would indicate an intent not to fire someone without good cause. Factors considered include the employer’s personnel policies or practices, the employee’s length of service (longer term employees may have a better argument), and actions or communications that reflect an assurance of continued employment, industry practices and other evidence.

Related Question

• Did my employer make false or misleading representations about my employment before it started? If the representations about the work duties, pay, or other benefits were clearly not true and you relied on those representations by changing jobs, moving to California from out of state, or incurring expenses to relocate and you are later fired or the employer reneges on the agreement, this may give rise to a cause of action. The representations can be intentional on the employer’s part or may even be just negligent. Consult an employment lawyer and see if you may have claims.

Does the employee have evidence that the termination of employment violated a statute or fundamental constitutional right or public policy?

While employers are allowed to fire employees for many reasons, they cannot terminate the employment relationship for reasons that violate constitutional rights or “fundamental” public policies. These terminations usually fall into categories as follows:

• Terminations Specifically Prohibited by Statute: Both the California Constitution and the California Fair Employment and Housing Act (FEHA) and Title VII of the United States Code (federal law) make it “unlawful” for an employer to discharge and employee because of that employee’s “race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex or sexual orientation.” California Government Code 12940(a) (discussed in more detail below)
• False Claims Act: For reporting an employer who is bilking state or local government
• Jury Duty: You cannot be fired for performing jury duty after reasonable notice to your employer. California Labor Code 230(a)
• Appearing in Court: If an employee has received a subpoena to appear in court and provides reasonable notice to the employer, they cannot be terminated for their court appearance California Labor Code 230(b)
• Domestic Violence Court Orders: Employees in California cannot be terminated for taking time off to obtain stay away or restraining orders or to attend court hearings related to seeking court intervention to prevent domestic violence. California Labor Code 230(d)
• Workplace Safety Complaints: California Labor Code 6310(b) prohibits an employer from firing an employee for complaining about unsafe work conditions or practices
• Whistleblowing: California Labor Code 1102.5 prohibits retaliation against employees who report their employer’s violation of state or federal law to a government agency.
• Disclosing Wages or Making Valid Complaint about Wages Owed: You cannot be fired for disclosing what you make in wages to other employees or persons CA Labor Code 232(c) or for making a valid complaint about wages you are owed such as unpaid overtime (CA Labor Code 1199)
• OTHER RIGHTS: There are numerous other rights which an employer can violate by firing an employee. Examples of prohibited employment discharges include being fired in order to avoid paying wages or commissions owed (CA Labor Code 201); being fired for complaining about threats of violence in the workplace (California Code of Civil Procedure 527.8); being fired for applying for unemployment benefits; being terminated for requesting or taking family or medical leave; being fired for refusing to engage in illegal conduct (including employment discrimination).

While the above list is not exhaustive of the various ways an employer can wrongfully discharge an employee in violation of the law, it provides some overall examples. The bottom line is that if you feel you are being singled out for termination because of same or similar circumstances, it is always advisable to consult with an employment attorney that can analyze whether or not you may have a claim for wrongful termination of employment.

Do I feel that the real reason for the termination was related to discrimination based upon my age, my gender, my race or some other type of same or similar characteristic?

Very rarely is your employer going to state that they are getting rid of you because they want younger workers, or more males or because of your race. However, these can be a “motivating factor” in their decision to terminate your employment. If there indications that this is the case, it is advisable to consult with an employment lawyer about your potential rights. California law prohibits terminating your employment or taking other “adverse employment actions” on the basis of numerous characteristics which include the following:

• Age Discrimination: It is unlawful to terminate an employee because of their age. Workers over 40 years old are considered in a “protected class” under California law. (For a full discussion of this, visit our Age Discrimination webpage).
• Race or Country of Origin: California employers cannot terminate you because of your race or the country where you were born. The employee has the burden, though, to show that the reason for termination was related to race or national origin as opposed to some other reason.
• Sex and Gender Discrimination: It is unlawful under both state and federal law to terminate an employee because they are either male or female or because they don’t conform to a stereotype of that gender (e.g. not “acting like a woman”). A so-called “prima facie” claim would be the scenario where a man/woman was qualified for a position but, was terminated and replaced by a person of the opposite sex but, other forms of discrimination based upon sex are also actionable. For example: Pregnancy Discrimination: Firing a woman for being pregnant or requesting or taking maternity leave time off to deal with pregnancy complications or childbirth issues; Transsexuals: Under the FEHA, “sex” includes both actual gender and that person’s identity, appearance or behavior different from that traditionally associated with the person’s gender at birth; Favoring Employees Having Affairs With The Boss: If a boss or supervisor is providing employment opportunities or benefits that favor employees who submit to sexual advances or favors to the detriment of those employees who don’t, this can be considered “sex discrimination” under the law. Sexual Attractiveness as a job requirement: Appearance or dress standards that are more stringent on one gender than another cannot usually form a basis to terminate an employee. Motherhood: Employers are not free to “assume” that women will be poor workers because of parental responsibilities. Sexual Orientation: Here, California law differs from Federal law. It is unlawful in the State of California to terminate an employee because they are heterosexual, homosexual or bi-sexual. Sexual Harassment: Terminating an employee because they will not comply with sexual favors or being subjected to a “hostile working environment” is a form of “sex discrimination” under both state and federal law. (For a full discussion of this, visit our Sexual Harassment webpage).
• Religion or Religious Creed: An employee cannot be terminated because of their religion and employers must provide “reasonable accommodation” for religious beliefs.
• Physical or Mental Disability: Employers can’t fire an employee for having either a physical or mental disability or requesting time off or other reasonable accommodation for that disability.(For a full discussion of this, visit our Disability Discrimination webpage).
• Medical Condition: California law prohibits firing an employee because they are diagnosed with either cancer or because of a genetic characteristic or medical condition known to increase the risk of a particular disease or disorder (example: being HIV positive).
• Marital Status: You can’t be fired for being married, not married, divorced, separated, a widow or widower.

Proving that you were fired because of one of these protected categories can be difficult. The employee can show they were intentionally discriminated against (i.e. that the employer treated them differently than similarly situated employees that were not under one of the categories above). This is sometimes shown by direct evidence such as the “decision maker” (employer’s representative that made the decision to terminate) by words or actions demonstrating an intent to discriminate (e.g. racial or age-ist comments) or by indirect evidence such as conduct which infers an intent to treat an employee differently. This often requires extensive requests for personnel records, time records, medical leave requests, and many other types of documents which must then be analyzed. It also often requires taking one or many depositions of supervisors, co-employees, and management personnel where questions are asked under oath. All of this is best done through a competent employment attorney familiar with proving up wrongful termination claims.

What if I’m being “layed off” along with a lot of other employees? Does this mean I have no potential claim for wrongful termination?

Even if an employer has a legitimate business reason to do a layoff of numerous workers, it is still illegal to go about the layoff in a “discriminatory” manner. What does this mean with regard to the kinds of discrimination discussed here and elsewhere on our website?

• Contract Claims: Layoffs or so-called “reductions in force” can provide “good cause” for terminating employees even those with written contracts for a specified term but this can be rebutted by showing that stated policies and procedures related to such layoffs were not followed.
• Discrimination Claims: Whether or not an employer had a legitimate reason to lay off workers, the employer can’t either use the layoffs as an excuse to discriminate against workers based on age, disabilities, etc. nor can they go about the layoff process in a way that discriminates against people on the basis of race, age, gender, etc. For example, if the employer specifically gets rid of workers over 40 because they want to “shed salary” or because they think younger workers may have better physical or technological abilities, this would be unlawful.

This type of claim is what is usually termed a “disparate impact” claim. It requires formal requests and analysis of the policies and procedures that were used by the employer in arriving at a decision as to which employees would be “layed off” and which would be kept. Again, this is not something that can be done normally (if at all) without the assistance of legal counsel.

Was I fired after reporting a major illness or physical condition that impaired my ability to work?

This is a related question to the one posed above. Employers in California have a duty to “engage in the interactive process” and “provide reasonable accommodation” for any physical or mental disability for which they have notice. This is discussed in more detail on our disability discrimination page. In basic terms, though, any employee that gets fired after they have advised the employer of a major injury or illness, should have a “red flag” raised to at least consult with a lawyer about their rights. The employer can’t simply terminate the employment (in many cases) without discussing potential options that would allow the employee to continue working under modified terms.

Related Questions

• “Was I fired after requesting time off for a medical emergency or to take care of a sick spouse, child or parent?” Both state and federal law require many employers to provide time off to take care of either their own serious illness or injury or that of a spouse, child or (sometimes) parent. If you were an employee who made such a request and were summarily denied the time off and fired because you “couldn’t do your job”, you should at least consult with an employment lawyer.
• “Was I fired during or after my pregnancy?” Federal law and California law affords great protection to pregnant women during and after childbirth. If you were terminated at any time after informing your boss that you were pregnant, this should also raise a red flag warning that the law may have been violated and you may have a claim for wrongful discharge of employment.

Consult With An Attorney Early in the Process and Get the Legal Help You Need

All of the above questions an issues provide some, but certainly not all, potential fact patterns that may give rise to a wrongful termination of employment claim in California. If you have been fired from your job and you do not feel that the reason given by the employer for your termination was legitimate, it is always best to consult with a lawyer in this field. Likewise, if your employer is threatening to terminate you and you feel that any of the above issues are coming into play, it may also be wise to consult with a wrongful termination attorney to see what you may be able to do to document your situation and make it more likely that you can prove that the reason for the firing was unlawful. Steven M. Sweat, APC has been helping people in wrongful termination claims for over two decades. Give us a call Toll Free at 866-966-5240 to find out how to protect your legal rights.