WRONGFUL TERMINATION
What is Wrongful Termination?
A 1980 California Supreme Court decision ruled that employers are not allowed to terminate an employee in violation of a public policy. (Tamney v. Atl. Richfield Co. (1980) 27 Cal.3d 167.) It is illegal and a violation of public policy in California to terminate an employee because of a protected characteristic, or in retaliation for an employee resisting discrimination, a hostile work environment, or harassment. The most notable laws prohibiting wrongful termination are the Fair Employment and Housing Act (i.e. "FEHA") and Title VII of the Civil Rights Act of 1964 (i.e. "Title VII"). These laws make it illegal for your employer to discharge, expel or otherwise discriminate against any employee on the basis of their “race, religious creed, color, national origin, ancestry, physical disability, mental disability, reproductive health decision making, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or veteran or military status.” (Government Code section 12940; Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028.)
The State of California also prohibits the retaliatory wrongful termination of employees under whistleblower protection statutes. California Labor Code section 1102.5 prevents employers from retaliating against an employee for reporting information that the employee reasonably believes discloses a violation of or noncompliance with a law or regulation. A whistleblower report could have been made to a government or law enforcement agency, a person with authority over the employee or another employee with the authority to investigate or correct the violation. Labor Code section 1102.5 also prohibits employer retaliation against an employee who provides information or testifies before any public body regarding what an employee reasonably believes is illegal activity or noncompliance with regulations. Notably, employees are protected from wrongful termination for a whistleblower report even if the employer did not violate the law as long as the employee reasonably believed a violation occurred at the time the report was made. In addition to Labor Code section 1102.5, employees are protected from retaliation under Labor Code sections 98.6 (reporting labor code violations such as a failure to follow California overtime laws), 6310 (reporting an unsafe work environment or filing for workers’ compensation), Government Code section 8547 (whistleblower protection for public employees), Health and Safety Code section 1278.5 (whistleblower protection for healthcare workers and patients who report unsafe patient care and conditions), among others. Further information about the various laws protecting California employees from whistleblower retaliation is available by clicking on this link.
What if I am an At-Will Employee?
The State of California is an “at-will” state where it is presumed an employee is “at-will” and therefore an employer or employee can end employment at any time for almost any reason. However, that does not mean that employers can terminate an employee for an illegal reason. As an example, illegal reasons for terminating employment not covered by “at-will” employment include termination of an employee because of the discriminatory animus of an employer and/or supervisor, because an employee made a whistleblower report, or because an employee resisted discrimination and harassment as discussed above.
In addition, although employees are presumed to be “at-will” there are circumstances that may have created a contract of employment, which means your employment may no longer be considered “at-will.” Often times an employer’s words and actions can form the basis of a contract to not terminate employment without good cause. Our employment attorneys are experts in performing the legal analysis required to determine if an employment contract was formed and whether your termination was carried out in breach of contract.
How Do I Take Action Against my Employer for Wrongful Termination?
Taking legal action of any kind, including action against your employer, can be complicated. There are many steps that need to be followed before a lawsuit is filed, and even more steps must be completed after. These steps may include obtaining a right-to-sue, filing a government claim, and requesting your personnel file, among many others. Although many of these steps can be completed by the employee, often times employees filing the forms on their own behalf may miss deadlines or omit important claims that should have been included. For this reason, it is highly advisable that you consult an attorney that focuses on employment litigation. Our wrongful termination attorneys and employment attorneys will ensure that all of the required and advisable steps are met and will maximize your chance of winning your lawsuit.
What If I Have No Evidence of Wrongful Termination?
Many people who suffer from wrongful termination fail to take any action against their employer because they believe that there is no evidence of their employer's illegal actions. However, employment lawyers have various ways to obtain the evidence needed for your lawsuit. For example, they can request documents (including emails and other electronic evidence) from your employer, subpoena witnesses to testify, and even take the deposition of the people who discriminated against and harassed you. Even evidence that the excuse – or pretextual reason – that your employer gave in an attempt to justify your termination is false can help prove your wrongful termination case. Very often there is more evidence than you might think exists, and this evidence can help strengthen your case.
What Is My Case Worth?
Generally speaking, wrongful termination cases have three types of damages: 1) lost earnings; 2) emotional distress; 3) punitive damages. The value of your case depends in large part on these factors, as well as a fourth - liability.
If you are wrongfully terminated you are likely entitled to compensation for your lost earnings - that is, the wages and benefits you would have earned had your employer not terminated you. However, you are still required to "mitigate" your lost earnings damages. Mitigation means applying for other jobs and getting another job as soon as possible. It's important to be able to prove that you've attempted to mitigate your damages, so save all job applications, all emails and letters to and from potential employers, and any other documents related to your job search.
Anyone who experiences discrimination and harassment likely sustained emotional distress as a result - that emotional distress might appear as depression, anxiety, suicidal ideations, headaches, weight changes, and any other physical or mental condition. As with lost earnings damages, it's important to document those damages if you needed and sought treatment from qualified medical providers. If you are depressed as a result, it may be beneficial to see a therapist, psychologist, or psychiatrist. If you have physical symptoms, seeing your primary care physician or a specialist may be warranted. If you cannot find treatment (for example, because you no longer have insurance), an employment attorney will be able to help you get the treatment you need.
Punitive damages, although rare, exist to create a deterrent from other employers from behaving in a similar manner. To obtain punitive damages an employee must show that clear and convincing evidence demonstrates that an employer’s managing agent, director or officer acted with oppression, fraud or malice.
The last factor is liability. Every case has good facts and bad facts. The more good facts there are in your case, the more likely it is that you will win at trial, and the more likely it is that your employer will pay more to settle the case. How do your attorney and your employer's attorney discover good and bad facts? Through the discovery portion of the case, described above. This means that the value of a case can change as both good and bad facts are discovered throughout, and why a good employment lawyer can maximize the value of your case.
Are There Deadlines For Me To File A Lawsuit?
Wrongful termination cases have numerous deadlines that can come up fast after your termination so it is important to speak to our attorneys to determine if you want to pursue an action as soon as possible. Generally speaking, public employees are required to submit a Government Tort Claim form within six (6) months for a whistleblower retaliation claim. A wrongful termination claim against a private employer can generally be filed two (2) years after termination. However, violations of the Fair Employment and Housing Act involving discrimination, harassment and/or retaliation based on protected characteristics or activity can be generally brought up to three (3) years after the incident occurred. It is important to retain an attorney and file a lawsuit before the statute of limitations – or deadline – expires on any of your potential claims.
How Does the Process of Suing My Employer for Wrongful Termination Work?
Every case is unique, but most cases follow a similar path: First, the employment attorney will collect information from you to draft a demand letter. A demand letter tells your employer that you will be filing a lawsuit against them if they do not agree to settle the case soon. Sometimes the employer will agree to settle, and the case is finished. If the employer refuses to settle (or if they fail to respond at all), your attorneys will promptly file a lawsuit.
The lawsuit (called a "Complaint") tells the employer the basis for your claims - what you allege they did wrong, and the laws under which those actions are illegal. The employer must the file a response, often called an Answer.
After the Complaint and Answer have been filed, both sides begin "discovery." Discovery consists of written questions that each side asks the other, as well as depositions of various people. In a deposition, the attorney for one side asks questions to a person from the other side under penalty of perjury. Once discovery is completed, both sides will typically attempt to resolve the case at mediation. In mediation, a neutral party - called the mediator - will talk to both parties in an attempt to get them to agree. If both sides do, the case is finished. If they don't, the attorneys begin to prepare for trial. While some cases do go to trial, many cases settle beforehand. Cases can take anywhere from a couple of months to three-four years to resolve depending on the unique circumstances in each case.
Our employment attorneys have over a decade of experience fighting for employee rights against the largest companies in the country. Our office handles wrongful termination claims, age, disability, gender, pregnancy and race discrimination claims, and whistleblower claims, throughout California, including Los Angeles, Orange, Riverside, San Bernardino, San Diego, Imperial, Ventura, Santa Barbara, and Kern counties. If you've been discriminated against, harassed, or retaliated against, or if you've suffered from a hostile work environment, please contact our office for a free consultation.