California is an at-will employment state. This means that the employer can terminate the employee at any time for almost any reason with no notice. There are many ways that this can result in completely unfair termination that is completely legal. However, there are things that employers cannot legally terminate employees for. State and federal law protects employees from workplace discrimination and ensures that if an employee is fired illegally, that they can file a wrongful termination claim.
Who Can Be Wrongfully Terminated?
Only people legally classified as employees can file for wrongful termination in California. Employees are workers who are trained by the company to complete tasks for the company’s regular business during set hours for an hourly rate or a salary. The employee generally works at the place of business and the company controls the way the work is done. Employees are protected by anti-discrimination laws and are eligible to file wrongful termination claims.
Independent contractors perform a specific service that is not part of the company’s regular business for a specific desired result in exchange for a set agreed upon compensation. They have full control over when, where, and how the work is done. They have their own business that is separate from the company. Independent contractors do not have an employment relationship and cannot file a wrongful termination claim. In similar applicable instances however, they may be able to sue their client for breach of contract.
What Does At Will Employment in California Mean?
An at-will employment relationship means that either party can terminate the relationship at any time for any reason, or for no reason at all. This is meant to protect both parties by giving employees the freedom to evolve their career as they see fit and allowing employers more control over how they run their business. Unfortunately, this does mean that even hardworking good employees can be fired without warning. Also, while employees are legally free to leave their job at any time, some companies may have policies requiring a certain amount of advance notice in order to qualify for rehire.
The only hard and fast exception to this rule is that employers are prohibited from terminating an employee for illegal reasons. Wrongful termination laws prohibit discrimination against protected characteristics such as their age, race, religion, sex, gender, sexual orientation, or disabilities. Employers are also not permitted to terminate employees as retaliation for engaging in protected activities such as whistle blowing or taking sick leave. Employers are also prohibited from retaliating against or trying to coerce an employee’s political activities.
Most employment relationships in California are considered at-will, however some may have their own contracts that bind the parties to specific terms. These contracts will generally outline the circumstances in which either party can terminate the relationship such as breach of contract, habitual neglect of duty, or an inability to perform. When an employee is part of a union, they often have contracts that specify the employee can only be terminated for good and valid reasons.
What are Grounds for Wrongful Termination in California?
In order to make a claim for wrongful termination, the reason for the termination must have been unlawful. Discrimination against a protected class or retaliation for engaging in a protected activity are grounds for a wrongful termination claim in California.
Terminated for Being in a Protected Class
The California Fair Employment and Housing Act forbids employers from terminating employees based on protected characteristics such as:
- Age
- Ancestry
- Color
- Disability
- Ethnicity
- Gender
- Genetic Information
- Marital Status
- Medical Conditions
- Military Status
- National Origin
- Race
- Religion
- Sex
- Sexual Orientation
- Pregnancy
Employers in California are also not permitted to terminate employees for whistle blowing, joining a labor union, or for any lawful activities they partake in during their off hours. Certain cities may also have their own specific additions to the list. San Francisco prohibits employers from discrimination based on height and weight.
Immigration Discrimination
California’s wrongful termination laws protect workers regardless of citizenship status. While employers are not permitted to hire anyone who is undocumented, they are not permitted to request paperwork beyond what is required by the government. Discrimination against someone for their immigration or citizenship status is a form of national origin discrimination and is prohibited by law. Furthermore, employers are not permitted to use someone’s immigration or citizenship status against them or threaten to report them or have them deported as a form of retaliation.
Language Discrimination
Employers are not legally permitted to forbid their employees from speaking any language or to force them to only speak certain languages. This falls under the category of national origin discrimination. However, sometimes a language restriction may be needed in order to run a business safely and efficiently. When a language restriction sufficiently satisfies that need, there may be exceptions made if the following criteria are met:
- There is a business necessity that requires a language restriction
- There is no way to satisfy that necessity other than a language restriction
- Employees are informed of when and where the language restriction applies
- Employees are informed of the consequences for violating the language restriction
Political Discrimination
Employers in California are prohibited from influencing or controlling their employees’ political stances or actions. Employers may not retaliate against their employees for belonging to any political party, attending political events, or opposing the employer’s political beliefs and actions. They are also not allowed to force them to take or not take any kind of political action. Employers are forbidden from discriminating against or terminating an employee due to politics.
Pregnancy Discrimination
Pregnancy discrimination is a form of sex discrimination and is prohibited by the California Fair Employment and Housing Act as well as the Pregnancy Discrimination Act. Employers are forbidden from terminating an employee for planning a pregnancy, becoming pregnant, suffering complications of pregnancy or childbirth, breastfeeding, or taking baby bonding time. Employers are also not allowed to refuse to hire someone because they are pregnant or might become pregnant at some point.
Discrimination of Victims of Crimes
There are many ways that an employer might discriminate against an employee for being the victim of a crime, and most of them are illegal. Employees have the right to take time off from work for the following:
- Obtaining a restraining order
- Getting help from a shelter, crisis center, or advocate program
- Receiving medical attention
- Receiving mental health care
- Healing from injuries
- Going to court or other legal proceedings
It is expected that employees give their employer as much advanced notice as possible when they need time off of work. In the case of an emergency, they may not be able to give any notice, in which case, they may need to provide their employer with additional documentation to excuse the absence.
Criminal Conviction Discrimination
If a California employer has at least five employees they are not permitted to ask prospective employees about any conviction history prior to making a conditional job offer. After they have made an offer, they are allowed to perform a background check. However, they are still not permitted to discriminate against prospective employees for:
- Arrests that did not lead to convictions unless the investigation is still ongoing
- Being referred to or attending pre- or post-trial diversion programs
- Convictions that were dismissed, eradicated, expunged, or sealed
If the background check does reveal a prior conviction, the employer must then conduct an individualized assessment to ascertain whether the conviction directly and adversely affects the job duties the prospective employee would be performing and if that justifies rescinding the offer.
As An Act of Retaliation
When an employer violates the law in any way, their employees have the right to report them, file a complaint, or participate in corresponding investigations. Employers are not permitted to retaliate against their employees for participating in these protected actions.
Whistleblowing
Sometimes, employers may engage in illegal activities or violate laws and regulations. They may even require their employees to do so as well. Employees in these situations have the right to refuse to engage in illegal activities and to report violations to individuals or agencies with the authority to investigate them. Thanks to California Labor Code 1102.5 these employees are protected from retaliation by their employers. They are also protected if they choose to participate in ensuing investigations or testify in court proceedings.
Whistleblowing for Securities Fraud
If an employee of a publicly traded company is fired for reporting their employer for securities fraud, the federal Sarbanes-Oxley Act of 2002 gives them the right to sue for wrongful termination. In California state law, the qui tam section of the False Claims Act gives employees the right to sue their employer for embezzlement and fraud on behalf of the government and protects them from retaliation.
Discrimination Complaints
Employees have the right to file complaints and make reports regarding discrimination and harassment in the workplace without fear of retaliation or termination. If an employer fires an employee for making such complaints, that employee may sue for wrongful termination.
Complaining About Wage and Hour Claims
Employers are prohibited from terminating or retaliating against employees for reporting or filing complaints about violations of wage and hour laws. California Labor Code 98.6 protects employees who file complaints regarding:
- Unpaid wages
- Unpaid overtime
- Incorrectly paid overtime
- Break violations
- Unpaid break violations
Employers cannot terminate an employee for complaining to their employer or for reporting such violations to the Labor Commissioner or Department of Industrial Relations.
Discussing Income
Employees have the right to discuss their salaries, wages, raises, and pay rate with each other. Employers are not allowed to prohibit them from doing so and may not terminate or retaliate against them for exercising this right.
Discussing Work Conditions
Employers are not allowed to prohibit employees from discussing their work conditions. The only exception to this is the discussion of trade secrets or other legally confidential information. The purpose of this rule is to protect employees who discuss unsafe or illegal work conditions from retaliation.
Complaining About Unlawful Work Conditions
Employees also have a right to make complaints regarding safety hazards in the workplace, whether those complaints are made to management or government agencies such as OSHA. They also have a right to refuse to engage in unsafe practices or work in unsafe conditions. Employers are further prohibited from retaliating against any employee who participates in an investigation to testifies in legal proceedings regarding safety violations in the workplace.
Sexual Harassment Complaints
Sexual harassment is considered a type of sex discrimination and is illegal in the workplace. Not only do employees have a right to report or complain about sexual harassment, but employers have a direct responsibility to hear and appropriately respond to those complaints. It is illegal to retaliate against an employee for reporting instances of sexual harassment, participating in an investigation into reports of sexual harassment, or testifying in legal proceedings regarding sexual harassment.
Requesting Reasonable Accommodations
Employers have a duty to provide certain employees with reasonable accommodations when requested, as long as those accommodations do not present undue hardship to the company. Possible accommodations that may be requested include:
- Devices or equipment to help an employee with a disability
- A flexible schedule for an employee with a chronic illness
- An adjusted schedule for an employee in a rehabilitation program
- Variety in provided meals to account for religious dietary restrictions
- Time off to observe religious holidays
Employers are prohibited by law from terminating or otherwise retaliating against an employee who requests reasonable accommodation.
Filing Workers Comp
All employers in California are legally required to have workers’ compensation insurance. If an employee is injured on the job, they have a right to file for workers’ comp. Employers are not permitted to terminate or retaliate against an employee for getting injured on the job or for filing for worker’s comp.
Taking Protected Time Off
The following are all protected actions that employers are required to grant time off for.
Jury Duty – When someone is summoned for jury duty, they are required by law to appear. If they are selected, they must return for as long as needed. Employees are expected to give their employers reasonable notice that they will have to miss work in order to attend jury service. Employers are not permitted to retaliate against employees who are selected for jury duty.
Voting – Voting is a protected right. If someone does not have time to vote because of their work schedule, they must be permitted time off of work to do so. Not only on a federal level, but California law dictates that employers allow their workers time to vote in state elections as well. Employers are not required to give an employee the entire day off, and can insist that the time be taken at the beginning or end of the shift. They can also require employees to give up to two days of advance notice.
Military – When someone joins the military, they are permitted to take up to five years of protected leave in order to serve. During those five years, the employer is not permitted to terminate them and must reinstate them when they return. Furthermore, any employee who takes leave for military service that lasts over 180 days can not be terminated without cause for at least a year after they return.
Children – Employees who have children may need time off from work to attend to situations such as:
- Enrollment in school
- School activities
- School emergencies
If an employer has at least 25 employees, they must allow employees with children up to 40 hours a year for child related activities, though they can limit employees to only 8 hours a month. Generally, employers with any employees must permit employees to take time to go to the school if their child has been suspended, though the employee is expected to give as much notice as possible.
FMLA – Employees covered by the Family and Medical Leave Act have a right to take up to twelve weeks of leave when needed. In order to be covered, the employee must work for the employer for at least twelve months before the leave is taken and must have put in at least 1,250 work hours in the last twelve month period. Employers with at least fifty employees must honor requests for FMLA leave to tend to serious personal or family health conditions. Employers with at least twenty employees must honor requests for FMLA leave to bond with a new child. Employers are not permitted to retaliate against employees for exercising this right and can be sued for wrongful termination if they terminate an employee after making a request up to 90 days after returning to work from leave.
Sick Leave – Employers must allow employees to utilize accrued sick leave when needed. However, they are permitted to apply limits to the amount of sick time an employee can accrue or utilize within certain time periods. Employers are not permitted to terminate an employee within 30 days of a request for sick leave unless they can definitively prove the termination was for legitimate reasons.
Pregnancy – Employees who are temporarily disabled due to complications related to pregnancy or childbirth may be entitled to four months of pregnancy disability leave in addition to FMLA leave. An employer cannot terminate an employee for requesting or taking pregnancy disability leave. An employee is eligible for this leave if they are unable to perform essential functions of their job because of any of the following:
- Morning sickness
- Diabetes
- Ordered bed rest
- Hypertension
- Preeclampsia
- Prenatal Care
- Loss of pregnancy
- Postnatal care
- Post-partum depression
Lactation – Employees who have recently given birth may need extra breaks during their shift to pump breast milk. With the very rare exception of instances where it would cause severe undue hardship on the business, employers must allow employees to take these breaks.
Violation of Implied Contract
An implied contract is an understanding between parties that is not an explicitly signed contractual agreement. An employment agreement or company policy may include specific circumstances in which an employee could be terminated and assurance that those are the only circumstances in which an employee would be terminated. If an employer violates this implied contract, the terminated employee may have grounds to sue them for wrongful termination. The specific circumstance may be as simple as “a good cause” and still be considered an implied contract should the reason for termination be deemed insufficient by a court.
Breach of the Covenant of Good Faith and Fair Dealing
There may be some instances where the circumstances of a termination are so egregiously unfair that the employer may be found guilty of acting in bad faith to prevent the employee from being able to do their job. Fraud, deliberate inaction, interference, and other forms of sabotage may make an employer liable for a wrongful termination claim.
Violation of Public Policy
A termination is considered wrongful if it breaks a law or violates some other public policy. In order to be considered a violation, the following requirements must be met:
- The policy must be constitutional or statutory
- The policy must be for the benefit of the general public
- The policy must be in place at the time of termination
- The policy must be considered substantial and fundamental
Terminations that are in violation of public policy include:
- Retaliation for participating in a protected activity
- Retaliation for whistle blowing
- Punishment for lawful conduct that occurred outside of work hours and offsite
- Punishment for refusing to break the law
- Discrimination against a protected class
Insufficient Notice in Mass Layoffs
The California Worker Retraining and Notification Act states that employers with 75 or more employees must give 60 days’ notice before a mass layoff of at least 50 people or before closing or relocating a job site. If the employer neglects this responsibility, their employees have the right to sue them for the wages and benefits for the time they should have been given.
Different Types of Wrongful Termination
There are situations where it may not be obvious that a wrongful termination occurred. Mixed motive terminations and constructive discharges are slightly more complicated than standard incidents.
Mixed Motive Termination
Sometimes, an employer may have multiple reasons for terminating an employee. Some of those reasons may be lawful while others are not. If the unlawful motivations present a truly substantial factor in the termination, and the employee can prove a causal connection between discrimination or retaliation and the termination, they may have a valid claim. If the employer can prove that the lawful and legitimate motivations would have resulted in termination on their own, the claim may not hold up.
Constructive Discharge
There are instances where an employer may force an employee to resign by creating an environment that is so intolerable that the employee can no longer work. Ways in which this may occur include:
- Severely reducing hours
- Severely reducing pay
- Severe and consistent harassment
- Being told to resign
- Being pressured to retire
- Having work sabotaged
Ordinarily, resigning would waive an employee’s right to sue for wrongful termination. However, in some severe cases, they may be able to claim wrongful constructive termination if two factors are met:
- The employer created or allowed a hostile work environment that any reasonable person would find completely intolerable and impossible to work under
- If the employer had terminated the employee outright, it would have been considered unlawful due to a violation of an implied contract or public policy
What Should Be Done if an Individual is Wrongfully Terminated?
When a wrongful termination occurs, there are several steps that can be taken.
Documentation – Hard evidence and eyewitnesses are best when trying to prove employment discrimination, retaliation, and wrongful termination. Emails, performance reviews, complaints, and things like security footage can all help support your claim. Keep a record of everything that happens as it happens and keep copies of everything.
Call an Employment Attorney – It is always a good idea to seek a legal consultation and go over your options. An attorney can also let you know if you have a valid claim. Sometimes, people feel they have been wrongfully terminated but are unaware of the law. Most employment in California is at-will unless stated otherwise and so a violation of law or public policy must have occurred. An attorney can help you figure out if your termination was wrongful.
File a Claim – Filing a claim with the EEOC or a lawsuit should be done in a timely manner as there are strict statute of limitations that apply to the process. Follow the legal guidelines for filing a claim and be as specific and detailed as possible.
Filing an EEOC Claim for Wrongful Termination
In order to file a lawsuit for wrongful termination, you may need a right to sue letter from the Equal Employment Opportunity Commission. They will investigate the situation and determine if you have a valid claim against your former employer. Sometimes, a right to sue letter can be requested before the investigation is complete in order to expedite the process.
How to Prove Wrongful Termination?
When facing discrimination and harassment or retaliation in the workplace, it is important to have as much documentation as possible. Keep a timeline of events that specifies dates, times, who said what, and includes things like leave requests, performance reviews, complaints, and writeups. Make complaints in writing and send them via email so that there is a record of the conversation and proof that the issue was brought to the employer’s attention. Coworkers who see and hear what is happening or are maybe going through the same themselves can provide witness statements corroborating your claims. Have copies of your employment contract, handbook, and termination letter if possible.
Potential Damages in a Wrongful Termination Case
There is a myriad of damages that someone can sue for in a wrongful termination case as there are so many ways that being wrongfully terminated can detrimentally impact their life. The type and value vary from case to case depending on the specific details of each situation. Some of the common damages awarded to employees in California for wrongful termination cases include:
- Lost Wages
- Unpaid Wages
- Value of Lost Benefits
- Lost Future Wages
- Value of Lost Career Opportunities
- Job Hunting Expenses
- Emotional Distress
- Pain and Suffering
- Change of Company Policy
- Termination of Perpetrator
- Reinstatement
- Punitive Damages
- Attorney Fees
- Litigation Costs
Contact Mesriani Law Group if You Have Been Wrongfully Terminated
Losing a job is a difficult and stressful experience on its own. Being wrongfully terminated due to discrimination or retaliation can be an especially painful ordeal. There are federal and state laws in place to protect employees and when employers violate those laws, the employees have every right to hold them accountable. Suing a former employer for a wrongful discharge can be a complicated process and it is often in the employee’s best interests to seek assistance from an employment attorney. Our firm specializes in wrongful termination and can help you get the compensation you deserve. If you have been terminated in violation of state or federal employment law, call Mesriani Law Group today for a free consultation.
Wrongful Termination FAQs
What qualifies as wrongful termination in California?
It is illegal for an employer to terminate an employee based on protected categories such as age, race, religion, genetic information disabilities, gender, sex, sexual orientation, pregnancy; or as retaliation for engaging in protected activities such as whistle blowing or requesting medical leave. When an employer’s motivation for firing someone is in violation of the law, public policy, or an employment agreement, it is considered a wrongful termination.
What are some examples of wrongful termination?
Situations that qualify as wrongful termination include:
• Terminating an employee after subjecting them to racial discrimination
• Terminating an employee after they make a complaint about sexual harassment
• Terminating an employee while they are on FMLA leave
• Terminating an employee after they disclose that they are pregnant
• Terminating an employee for participating in an OSHA investigation
• Terminating an employee for taking days off for religious holidays
Can an employee sue for wrongful termination in California?
If an employee has been wrongfully terminated, they may have a right to sue for economic and non-economic damages depending on the details of the situation. It is not always easy to substantially prove that the termination was in fact wrongful, so it is best to have as much hard evidence as possible.
Can you be fired for no reason in California?
California is an at-will employment state. This means that in most employment relationships, either party can end the relationship at any time for any legal reason unless they have an agreement stating otherwise. California employers are generally allowed to terminate employees for arbitrary reasons or for no reason at all so long as they are not in violation of the law, public policy, or an employment agreement
