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Retaliation and Wrongful Termination

Have you been fired or laid off by your employer? You may believe that this action occurred illegally.

Laws, statutes, and court decision define when termination is actually wrongful – when an employee is fired for illegal reasons, predominantly including, but not limited to, discrimination.

The information provided in this article is meant as general knowledge around wrongful termination and retaliation, which are illegal practices, as well as your rights when these incidents occur. This is not intended as legal advice, as every case is individual and may fall under various legal scenarios.

At California Sexual Harassment Attorney, we specialize in the many laws, statutes, and court decisions that inform retaliation and wrongful termination in the State of California. We can help guide you through your rights and choose whether and how to pursue a wrongful termination.

Defining wrongful termination

Wrongful termination is the concept that an employer fired, laid off, or otherwise terminated an employee on an illegal basis. Reasons for firing an employee that could be illegal include breaching an employer/employee contract or violating anti-discriminatory laws.

In the United States, no single law protects against wrongful termination. Instead, several federal and state laws, as well as court decisions, help specifically define the concept.

On the state level, 49 of 50 U.S. states are “at will” states, which means that employers can fire employees at any time without cause – this term is known as termination at will. (The only exception to this is Montana.) In California, employees are protected by the Fair Employment and Housing Act (FEHA), and if a terminated employee pursues wrongful termination by the employer, this action will normally be investigated by the California Department for Fair Employment and Housing (DFEH).

On the surface, at will employees seem unprotected against termination without cause. There are exceptions to this: some employees could have contracts with their employers that limit the employers’ ability to fire or terminate them with no cause. Employees could be part of a labor organization or union, of which a benefit may be some collective bargaining agreement that can include limits on how employees are terminated as well as disciplinary processes that necessarily occur before termination.

Furthermore, termination is illegal if the basis for it is a person’s characteristics that are otherwise protected from discrimination. For example, several laws including the federally-recognized Title VII of the Civil Rights Act and the California Fair Employment and Housing Act (FEHA) protect against discrimination based on an employee’s age, race, color and national origin, gender or sexual orientation, medical condition including mental and physical disability and pregnancy, and more.

Encompassed in anti-discriminatory policy is sexual harassment. If you’ve been fired or terminated as a result of sexual harassment, this is also illegal and can fall within the parameters of wrongful termination.

Additional laws and statutes protect against terminating an employee who reports the employer to an oversight agency, perhaps on legal, safety, or other violations. These are known as whistleblower laws.

Finally, most states, including California, prohibit the termination of employees in retaliation for making a formal complaint about unpaid wages or workers’ compensation claims.

What is retaliation?

Retaliation is the concept that the employee is terminated for attempting to do the right thing under public policy. This can include whistleblowing or filing a formal complaint about the employer regarding safety, compensation, legal, and other issues in the workplace.

Does at-will employment mean I can be fired for any reason?

Yes and no. Many times, employees and even some employers mistakenly believe that at-will employment, as it exists in California, means that you can be fired at any time and that it protects the employer from any wrongful termination. This is false.

Instead, at-will simply means that an employee does not have a contract to work for a certain amount of time and with certain benefits. This stems from a former historic notion where new employees would sign a contract with their employer regarding length of time they will work. Most companies and employers do not work this way anymore, instead using the at-will status in place of this employee contract.

It is likely you work under an at-will employer, but that doesn’t mean that any firing or termination is considered legal.

What are illegal reasons I might be terminated?

Even if you reside and work in an at-will state, like California, wrongful termination can still happen. It is the employee’s responsibility to recognize and claim wrongful termination.

Common instances of wrongful termination include

  • Implied contract. A court may find that some employer policy or handbook implies a contract of employment. For example, an employee manual may list an explicitly stated disciplinary process, and the terminated employee may be able to successfully argue that the manual implied that disciplinary process must occur prior termination.
  • Public policy. A court may find that an employee cannot be terminated for a reason that may violate federal, state, or local public policy – even if a labor law or court decision doesn’t explicitly state the situation is wrongful. Some examples could be:
    • An employee refusing to do part of the job when it is illegal under public law.
    • An employee reporting the employer’s violation of the law to an oversight agency.
  • Covenant of good faith and fair dealing. A court may find that an employer terminated an employee in an unfair way that reflects the employer’s bad faith. For instance, if an employee is terminated just before his/her employee benefits are vested, the court may find that the employer did so simply to avoid the cost of the benefits – hence acting in bad faith and unfair dealing.

Do I have any rights when I’ve lost a job?

You do have rights upon termination, but because there are many laws and procedures that are specific to individual cases, it is best to speak with a labor lawyer who can provide professional and accurate information.

Some rights you have may include:

  • Viewing your personnel file. In most states, employers are required to share this with you when employees request it. Make a copy and store it safely. This can be useful during a legal claim – for example, perhaps your personnel file was altered after your termination in an attempt to show legal cause for termination.
  • Making a wrongful termination claim. You may opt to make a formal claim against your employer, and an experienced attorney can provide specific legal counsel. Remedies to your claim could include money damages, covering the cost of legal fees, and statutory damages such as employer fines. In California, most complaints regarding wrongful termination go through the California Department of Fair Employment and Housing (DFEH).
  • Negotiating a severance package. An employer is not required to provide severance compensation unless stated in an employment contract or employee handbook. However, you may be able to negotiate some package in exchange for waiving legal claims against the employer.

What should I do once I’ve been fired?

There are many steps you can take – and some you should not – upon firing, particularly when you suspect it may be a wrongful termination.

  1. Think before you act. While you may be angry, shocked, and frustrated, take note of your feelings and do not act on them. Any action pursued without legal counsel could be a detriment to your case should you decide to pursue legal action.
  2. Follow post-employment procedures. This can include returning any company property and leaving the premises as asked.
  3. Know your rights. Review any documents you signed at the time of employment, such as employee handbooks, anti-discriminatory policies, and HR trainings regarding discrimination and termination. These documents may outline or otherwise imply procedures that were meant to happen in case of termination but did not.
  4. Speak with a labor attorney. Lawyers who specialize in labor law and wrongful termination can help you understand your rights as well as various ways to report and investigate your claims.
  5. Keep track of any evidence. If you suspect your termination was wrongful and illegal, any documents that support your allegations may be useful. These can include
    1. Documents that are positive in nature – such as internal reviews with a supervisor, personal feedback on projects, any promises that your employer indicated, and anything that shows your value and contribution to the company.
    2. Documents that are negative in nature – such as proof or witnesses to alleged discrimination or that are the basis for your suspicion that your termination was handled improperly.
    3. Records and documents can include emails, text messages, notes from face-to-face or group meetings, instant messages, social media, etc. Gather what you can and keep it in a place that is not accessible by your employer.
  6. Learn about your termination. As much as possible, speak with your employer (likely the Human Resources department) about the reasons for your termination. You may ask who made the decision to terminate you, and you can request to view your personnel file.
  7. Confirm all agreements in writing. This can be as simple as a document that lists the reasons for your termination per the employer and recognition that you have been terminated and did not resign. Should you further pursue a severance package or continued medical or dental coverage or other pay or benefits, this should also be documented in writing.
  8. Do not bow to attempts of intimidation. Though an employer has the responsibility to ensure terminations are legal, the only way to challenge the legality is through individuals. Companies may be aware they did something illegally and opt for intimidation of individuals to avoid any legal process and punitive measures. Further, you are the only person responsible for your safety and justice.

How do I know if I was wrongfully terminated?

Unlike some workplace scenarios that may be very obvious, it is often very hard to determine with 100 percent accuracy whether your termination was illegal. Most complaint processes require that the employee be fired before starting a claim, so the best situation upon termination is to gather what information you can and speak with an experienced labor attorney who can help investigate and determine whether your termination was wrongful.

If you’re unsure about your termination, here are some guidelines that may help in determining whether your termination was indeed illegal:

  • You possess clear evidence (written, verbal, or otherwise) that you were fired on the basis of discrimination.
  • You are aware of circumstantial evidence that you were fired on the basis of discrimination. (Circumstantial evidence is not clear proof; instead it could include that only women were fired or that you were fired after disclosing a personal factor such as religion, pregnancy, etc.)
  • You believe you are treated differently from other employees on the basis of protected factors such as race, age, sex, etc.
  • You are aware of an employer or workplace superior or indicated he or she has bias towards or against certain groups of people.
  • You believe your termination goes against your tangible written contract and/or any employee handbook that addresses disciplinary and termination processes.
  • You were promised by your employer or superior that your job was never in doubt.
  • You spoke up (either to the employer or an oversight agency) about harassment or another illegal workplace situation, such as wage imbalance or lack of safety procedures.
  • You were warned by another employee about pursuing formal action regarding your employer.
  • You were subjected to harassment.
    • This can include a colleague or superior making inappropriate and unwelcome comments as well as discriminatory comments.
    • You have record of and/or witnesses to this harassment.

Knowing if you were wrongfully terminated can be tricky. At California Sexual Harassment Attorney, we are experts in labor laws and wrongful termination and retaliation. We have helped many people across the State of California understand their rights in the case of wrongful termination and we have guided them through the justice process. If you’re ready to learn how we can help your situation, call us today at 800-905-1856.


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