If you have been recently fired, you have come to the right place. Being fired is a terrible experience. Not only does it take away your livelihood, but it is often unfair and unjustified. But just because the termination is unfair, it does not mean it is unlawful.
I meet with recently terminated employees on a daily basis and they all want to know if they have a case for wrongful termination. Unfortunately, most of the time, I must tell them that they do not. This blog post explains the basics of wrongful termination.
- “At-Will” Employment
In California, all employment is presumed to be “at-will.” This means that either the employer or the employee may terminate employment at any time, with or without cause or prior notice. Even before stepping into a courtroom, the presumption is against the employee. Therefore, the first thing the employee needs to do is overcome the at-will presumption. This can be done when there is either 1) a breach of an employment agreement or 2) a violation of a statutory or public policy.
- Beach of Employment Agreement
An employee who is terminated before the expiration of his or her contract may have grounds to recover the full amount of that contract through a breach of contract claim. Most employment contracts define the specific reasons under which an employee may be terminated. The employer is obligated to adhere to the terms of the agreement and terminating an employee without following proper procedure may be a breach of contract. In some cases, the employee handbook can create a binding contract. Everything is determined on a case by case basis, so an attorney would need to review all the facts before being able to determine if there is a claim for wrongful termination based on breach of contract.
- Important Public Policies
The public policy exception to at-will employment allows an employee to sue when the termination violates an important public policy. This means that an employee may sue an employer for wrongful termination if the employee was terminated for refusing to violate a law, performing a legal obligation, exercising a legal right, or reporting an alleged violation of law to the government, law enforcement or a supervisor. The most common policies that support public policy wrongful termination suits include: sexual harassment, whistleblower retaliation, and discrimination based on age, sex, disability, religion, race, and national origin. In other words, the law protects employees in a “protected class” or employees who engage in “protected activity.”
- Protected Activity
In order to establish a claim for retaliation, an employee must establish that he or she engaged in “protected activity.” There is no set definition of protected activity. The activities are set by statute and cover a wide-range of issues. The Department of Industrial Relations lists 47 actionable statutes under the Labor Code. (http://www.dir.ca.gov/dlse/howtofilelinkcodesections.htm). However, the most commonly litigated in recent years involve whistleblower activity where an employee is terminated for making complaints of what they reasonably believe to be unlawful activity.
- Protected Class
California’s “protected classes” are the largest in the nation. They include: Sexual orientation, Gender identity and gender expression, race, color, ancestry, national origin, religion, sex (including pregnancy, childbirth, and related medical conditions), medical conditions, AIDS/HIV, disability (physical or mental), age (40 and older), genetic information, marital status, military or veteran status, political affiliations or activities, and status as a victim of domestic violence, assault, or stalking. If termination arises because an employee is part of one of these protected classes, then the termination may be wrongful. It is not enough to be a member of a protected class. There must be nexus between the termination and the discrimination.
Not all termination is wrongful. However, if you’ve been terminated because of your protected activity or because you are part of a protected class, you should seek the advice of an attorney. If you were terminated without any prior disciplinary action, ask an attorney to review your employment agreement or employee handbook for a violation of policy.
Daniel Thompson is an employment attorney with Davis & Wojcik APLC, a Southern California based law firm specializing in labor and employment matters with offices located in Temecula and Hemet. He is also the author of Land of Liability: A Guide for California Employers. He can be reached at (951) 652-9000 or by visiting www.dw.law.