WATOOL web accessibility toolbar
control of text size
Settings
16 px
control of brightness
Settings
increase of contrast
control of colors
Settings
change of font
Settings
control of letters span
Settings
level 1
activation of reading rulers
deactivate animated images

Tag: Wrongful Termination

Categories
Employment Law

What Qualifies as Wrongful Termination in California?

Employers in California may be able to fire an employee at any time, but if you were terminated for a reason you believe may be illegal, you may be able to collect lost wages, benefits, and more. So what qualifies as wrongful termination in California?

What Qualifies as Wrongful Termination in California?

California is an “at-will state,” which means employees can be dismissed at any time (at will) without giving a reason to the worker. Workers typically do not have contracts, and employers are not under any obligation to keep them employed. However, federal and state laws do provide some protections for workers who might be dismissed for illegal reasons.

Today, we’re taking a closer look at the following reasons considered illegal in California:

  • Breach of contract
  • Discrimination
  • Employer Retaliation
  • Violation of legal time off
  • Violation of public policy

Keep reading to learn more.

Contract Breaches

Contracts between worker and employer can be written or oral, explicit or implied. If a contract is not explicit, there still may be an implied promise of job security for a period of time with an implied commitment not to fire the employee without good cause.

The implied contract is valid, even though the employer hasn’t made actual promises but acts in a way that leads the worker to think he or she will remain employed.

Employer policies are often spelled out in a company handbook or published guidelines. These policies sometimes provide the framework for the employment contract and usually list the steps that must be followed to discipline and/or terminate a worker.

An example is giving a worker at least one warning before termination. If this policy is not followed for everyone, then there may be a case for breach of contract or discrimination.

Discrimination

Federal law provides protection to certain classes of workers against being terminated based primarily on being a member of that class.

These classes include race, color, national origin, sexual orientation and preference, pregnancy, age (over 40), religion, disability, genetic information, citizenship, marital status, AIDS or HIV status or other medical condition, military or veteran status, political activities or affiliations, or status as a victim of domestic violence, sexual assault, or stalking.

Employers may not make job decisions, including whether to fire a worker, based on these classes alone. If they do so, they are potentially guilty of violating any number of laws including Title VII of the Civil Rights Act and the California Fair Employment and Housing Act (FEHA).

Employer Retaliation

According to the Retaliation Act of 1973, it is illegal for an employer to retaliate against workers for asserting their rights, including their right to work in a healthy and safe environment free from discrimination and harassment. If a worker feels these rights are being violated and the fact is brought to the attention of the employer and/or proper authorities, that worker is protected from retaliation from the employer.

Retaliation can take many forms. The worker can be reassigned to more difficult or less satisfactory work. The worker can be harassed, and/or asked to do tasks that other workers are not asked to do. The worker can be terminated unfairly; or the worker may just quit, thinking working conditions are no longer acceptable. In this case, the termination is considered involuntary. It is referred to as “constructive termination” and is a cause for a wrongful termination suit.

Filing a complaint against a company for unsafe or unhealthy conditions in violation of OSHA or other federal or state laws is the right of every worker. Termination as a result of this kind of complaint violates what is called the “whistleblower” law, and puts the employer in jeopardy of legal proceedings.

Similarly, filing a worker’s compensation claim is a legal right and one that cannot be the cause of retaliation in any form.

Violation of Legal Time Off

Federal and California laws allow workers the right to take time off for designated family and civic responsibilities. Employers may not fire or discipline their workers for exercising these rights. Protected leaves include the following situations:

  • Family and Medical Leave
  • Military Leave
  • Voting and Jury Duty
  • Pregnancy

Let’s take a closer look.

Family and Medical Leave

The Family & Medical Leave Act (FMLA) is a federal law that allows workers to take time off for medical or family emergencies. California has a similar law but it is modified somewhat to include domestic partners in the definition of “family member.” Workers who take the FMLA leave are legally entitled to return to their previous position following the leave.

Military Leave

Workers are permitted by federal law to take up to five years of leave to serve in the military and must be reinstated when they return to work. The law protects workers from being discharged without good cause for up to one year after they return from duty.  It also protects them from discrimination based on their military service.

Voting and Jury Time Leave

If there is not enough time to vote during non-working hours, California allows workers time to casts their ballots with up to two hours of paid time off, taken at the beginning or end of the worker’s shift.

The state of California also allows workers unpaid leave for jury service. Employers may not penalize workers for jury service or they may be given wrongful termination penalties as well as criminal sanctions.

Pregnancy Leave

California employers with at least five workers must provide those eligible workers with up to four months of disability leave for pregnancy. The time given is in addition to the time off provided under the family and medical leave laws. A California worker is allowed to take four months off for a pregnancy leave and another 12 weeks off for nurturing and bonding.

California also grants up to 10 days leave to eligible workers to visit with a spouse who is on leave from active military duty. The state also provides time off for a child’s daycare or school activities, for domestic violence or drug abuse, for alcohol or drug rehabilitation or for bone marrow or organ donor leave. A worker may not be terminated for taking advantage of these protected leaves.

Violation of Public Policy

Claims of violation of public policy are similar to but slightly different from, retaliation claims. While retaliation claims are based on specific and specified rights and laws, claims for public policy violation need not be based on labor laws or even specific statutes.

If a worker is asked to do something illegal and is fired for not doing so, the employer is guilty of wrongful termination. No one should be fired for protesting or refusing to participate in illegal or unethical behavior.

Violating public policy resulting in wrongful termination is a form of personal injury, which means a worker can collect not only lost wages and benefits but also damages for emotional distress as well as punitive damages (if an employer’s actions are particularly egregious or harmful).

Conclusion

Employers in California can terminate an employee at any time, with or without notice. However, the state has created several laws that protect employees from being fired for reasons considered unethical.

  • Breach of contract
  • Discrimination
  • Employer Retaliation
  • Violation of legal time off
  • Violation of public policy

If you were let go from employment due to one of these reasons, you can collect lost wages, benefits, and more. To get started, you need to find an attorney who specializes in employment law. This type of attorney will be knowledgeable of California employment law and guide you toward a resolution.

If you’re not sure where to find an attorney, we can help!

Give us a call at 818-340-4529 or fill our the attorney request form and we’ll help match you to the best attorney for your needs in your area. To keep things simple, we’ll even help you schedule a free consultation so you can discuss your legal matter and make a more informed decision.

Categories
Employment Law

How to Find an Attorney for Wrongful Termination

An attorney for wrongful termination will evaluate the events leading to your termination, documentation, and help you seek appropriate compensation.

You have just been let go from a job you loved and really needed, and you aren’t sure why it happened. You don’t think it was fair, and you’re not sure what to do about it.

There are reasons a company can legally fire you, but there are also reasons why your firing may be illegal and you do have recourse.

What you should not do, after being given that “pink slip” is to vent at work, lash out at your manager or coworkers, make threats, or send angry emails. The situation calls for being calm and rational, and thinking through the process, considering what steps you should take to move forward.

If you do need to let out your frustrations, do it away from the office. Talk to your spouse and friends. Make some notes about what happened to refresh your memory later on. But don’t include them in emails.

Then, put together an action plan for yourself.

Learn About Wrongful Termination

What is wrongful termination?

First, do some legal research on the subject of wrongful termination. There are various federal and state laws that apply to employment issues. Learn about the federal laws as well as those in your own state.

Find out if any of the legal descriptions fit your particular case. There are many kinds of wrongful terminations, and you just might find that you have a case.

Here are a few examples:

  • Discrimination: you cannot be terminated on the basis of the employee’s race, gender, national origin, disability, religion or age.
  • Retaliation: you cannot be fired for “asserting your rights.”
  • Refusal to take a lie detector test: you cannot be fired for refusing to take a lie detector test.
  • Alien status: you cannot be fired on the basis of your alien status, as long as you are legally able to work in the U.S.
  • Employee complaints about OSHA violations: you cannot be fired for making a complaint about an OSHA violation, like unsafe or unhealthy working conditions. This has been referred to as the “whistleblower” protection.
  • Violations of public policy: most public policy laws protect you from being fired because you refused to commit an illegal act, complained about an employer’s illegal act, or exercise your legal rights.

Document Your Case

If you are considering finding a lawyer to help you, and you have done some research to have a pretty good feeling that your firing may have been illegal, you should start gathering the information a lawyer would find valuable.

Did you have a written contract or another statement that promised you job security? You may have been given a document that stated you could only be fired for good cause or for reasons stated on the contract. If you were fired for any other reasons, you probably have a good case.

If you think you were fired to prevent you from collecting sales commissions, or you think the boss just wanted to replace you with a lower pay employee, you may have a case of what is called “breach of good faith and fair dealing.”

If you were falsely accused of sexual impropriety or harassment or falsely accused of failing to do your job or failing to follow safety rules, you could have a case.

Write a timeline of events as you remember them and include all relevant information including computer files, memos, documents, and any comments your boss may have made to you. Include names of any witnesses and write down any comments they may have made. Any evidence you can gather will help your attorney build your case.

Find An Attorney Near You

Now that you have information that you think will back up your case, it’s time to get legal representation. A lawyer can help you determine what your losses are, also called damages, from the termination. These may include lost pay, lost benefits, increased medical expenses, and possibly emotional distress. Lost pay includes the period of unemployment until you are (or expect to be) rehired, and at the same rate of pay. Benefits include medical plan coverage, bonuses, stock options, 401K plans, and more.

Your attorney can help you calculate an estimate of your losses in each category.

There are many areas of law that are related to employment and many law firms that specialize in handling wrongful termination.

When you start looking for the right attorney for you, make sure to ask about fees. There is certainly a financial strain when someone is fired, and many wrongful termination attorneys will represent you on a contingency basis, meaning you owe no money up front but agree to pay a percentage of any settlement.

If you are looking for a single service, like having an attorney look over a severance agreement or filing a claim for unpaid wages, you may want to find one who charges an hourly fee.

While attorneys also work on a retainer basis and handle all legal matters for their clients, this is most often done with businesses, although some individuals do retain attorneys for all legal assistance.

Many law firms offer unbundled services and perform specific legal actions on request. Some attorneys use mixed charges of hourly and specific action. When looking for a lawyer, ask what services are provided and how fees are structured.

Your attorney can help you calculate an estimate of your losses in each category.

The best way to find the right attorney in the field of employment law and wrongful termination is through a certified attorney referral service that can hear your complaint and suggest the most qualified attorney who can help you.

Find an attorney referral service near you to begin the dialogue that will turn your wrongful termination into a positive recovery for you.

Plan for the Future

After your legal situation plays out and is resolved, you should consider what happens going forward. You will be talking to new companies and potential new employers. You will want to explain what happened at your previous company.

You may want to ask your attorney to help you draft a brief letter of explanation you can present to potential employers, sharing enough information without using any that is confidential.

Now that you have gone through the process, maintain your awareness of your new employment situation and the laws that govern the workplace. You may be in a better place, knowing what to look for and how to protect yourself with a full knowledge of the law and your rights.

 

Categories
Employment Law

Examples of Wrongful termination: 5 Reasons to File A Claim

The state of California protects employees from a variety of discrimination and other wrong-doing, including wrongful termination. So, what is wrongful termination exactly and what can you do about it?

Today, we’re taking a closer look at five examples of wrongful termination so you’re prepared.

Examples of Wrongful Termination

Employees and employers alike are often in the dark as to what constitutes wrongful termination. An employer who fires an employee without regard to termination laws leaves himself open to strong legal action.

An employee who doesn’t know his or her rights in the workplace can lose an opportunity to file a legal complaint along with any chance of compensation for being fired illegally.

So how do you know if you are wrongfully terminated?

Here is some basic information that will help you understand the employment laws regarding the subject.

At will employment

At will employment means you can quit or be terminated at any time and without cause. However, there are certain conditions that might still apply for wrongful termination. If the employer terminates the employee because of discrimination or retaliation, there is a case for illegal termination.

“Good faith and fair dealing” is a principle which applies to all contracts, whether stated or implied. Some terminations may be a breach of this contract principle and subject to an illegal termination claim. Forcing employees to quit without collecting sales commissions, severance pay or other benefits may also be breaches of contract.

There is another scenario during “at will” employment, or even contractual employment, where an employee decides to resign because of unacceptable working conditions. The reason could be that the job is unsafe or unhealthy. Working conditions have become intolerable.

This situation is called “Constructive Dismissal.”

Constructive Dismissal

Constructive dismissal results from an employee quitting but in an involuntary way because the employer’s working conditions really violated the express or implied contract. The resignation is really treated as firing in this case.

There are conditions which must be met for the situation to meet requirements for constructive dismissal. For example, in California, the employee must prove that the conditions were so bad that any reasonable person would have felt compelled to quit. The second condition is that the employer knew the conditions were intolerable or he intended to force the resignation of the employee.

Generally, a single negative occurrence is not enough to warrant a judgment of constructive dismissal. More often than not, it is the pattern of adverse conditions that can lead to such a judgment.

Contractual employment

If you signed a contract or entered into a verbal agreement with your employer, then that employer is obligated to honor the agreement, written or not. A verbal promise becomes an implied contract. If for example, your employer tells you he will give you six months to prove yourself and then lets you go after three months, he is breaching the implied contract.

Unfair labor practices may include misleading or deceiving employees about their chances for raises or promotions. It is also wrong for employers to lie about the reason to replace someone when the real reason was to replace that person with cheaper labor. It is wrong for an employer to transfer an employee or reassign him or her to avoid paying a sale commission.

Whistleblower retaliation

If you are fired after you report an unethical or illegal act by your employer, he may be guilty of whistleblower retaliation. The same would be true if you reported wasteful spending or other actions that led to a retaliatory termination. Different states have different regulations, however, so you should check with your own state for guidance.

Illegal act retaliation

You cannot be legally terminated if you refused to perform an illegal act, for example, or work unpaid hours or double shifts in violation of labor laws. In such cases, you may be able to make a claim for retaliatory termination.

Classes protected from discrimination

Anti-discrimination laws prevent employers from taking adverse action against any employee considered to be in a protected class if that action is based on a protected characteristic. Adverse action includes termination. Protected characteristics include race, color, religion, age, gender, pregnancy or disability.

Some states have other protected categories including sexual orientation, immigration status, and gender identity. Anti-discrimination laws protect all these classes of employees from targeted termination based solely or predominantly on protected characteristics.

Protected time off

There are certain times and situations that allow time off from work, and during these times employees are protected from being terminated. For example, the Family and Medical Leave Act allows employees to recover from illness or care for a family member. The Act also covers time to serve on a jury or go to vote. Military service members who are called to duty may not be terminated for this reason.

In California and possibly other states, protected time off includes taking time for medical treatment or legal proceedings in cases of domestic violence, sexual assault or stalking. Employers should explain these rights to their employees.

Disciplinary steps

Many companies have a published set of rules covering possible disciplinary policies. Often these rules are in an employee handbook or in a set of Human Resources documents. Once an employer publishes or discusses these policies with employees, the employer is bound to follow them.

If the policy says that an employee shall have two warnings before being terminated, then if that employee is fired after one warning, there may be a case for wrongful termination. If the employee was told he would get a written warning but did not, and was terminated, there may be another case. In the case of formal disciplinary guidelines, both sides should follow them.

Filing a discrimination claim

An employee who feels he or she was terminated because of discrimination can file a complaint (also called a charge) with the federal agency, Equal Employment Opportunity Commission (EEOC). This agency handles most of the legal claims made in discrimination cases.

Employees can file a complaint against their employers only after they appeal to the EEOC and are granted a Notice of Right to Sue.

Penalties can be heavy

There are monetary penalties that may be determined as well as possible punitive damages depending on the motive of the employer or reckless disregard for the protected rights of employees.

Settlements for wrongful termination can cover attorney fees and lost wages as well as punitive damages that can total several hundred thousand dollars. The average out-of-court settlement is $40,000. Ten percent of wrongful termination cases, including discriminations, reach a settlement figure of $1 million.

If you feel you have been wrongfully terminated, you should consult an attorney to get the best advice on how to proceed with filing a claim including learning about federal and state laws as they apply to your situation.

Exit mobile version