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9.24.2020
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A Complete Guide To Wrongful Termination in California

When it comes to ending an employment relationship in California (and in most states), the deal is pretty straightforward: while you’re free to quit your job at any time, for any reason, your employer is likewise free to fire you at any time, for any reason. It’s a tough but fair bargain, and legally speaking, it’s one that holds water under most circumstances. 

However, this leads many people who have been fired or laid off from work to think that they have no legal protection under any circumstances, which is simply not true. If your boss has let you go for any reason that is considered illegal in the state of California, then you may be able to sue for wrongful termination. Some of those reasons may be obvious, others are much more nuanced, so it’s important to understand the basics of these laws to determine if your rights as an employee have been violated. 

What Is An “Employee” in California?

A wrongful termination claim can only be filed by an “employee” (as opposed to an “independent contractor”) because it relates specifically to an employer terminating the relationship with the employee, so the first thing to understand how “employee” is generally defined under California law. 

Practically speaking, a worker is classified as an employee if:

  • They perform a service for an employer who exercises a high degree of control over their wages, hours, and working conditions. 
  • The employer also bears the responsibility of paying social security, payroll taxes, and providing worker’s compensation insurance.

By contrast, independent contractors – while still providing a service for a business – are not considered employees because they can work for multiple businesses at once and the employer has less control over when, where, and how they perform their work. Specifically, the three requirements (known under California law as the ABC test) to determine whether a worker is an independent contractor are: 

  1. The worker must be free from the control and direction of the hirer in connection with the performance of the work.
  2. The worker must perform work outside the “usual course” of the hirer’s business.
  3. The worker must be customarily engaged in an independent established trade, occupation, or business of the same nature as the work performed.

It’s very important to know the difference because the laws discussed below relate specifically to wrongful termination, which only applies to employees of a company. If you’re an independent contractor, you may still be able to file a claim against a business for, say, a breach of contract or violation of another law, but if the employer ends their professional relationship with you it would not technically qualify as termination in this context. 

Unlawful Reasons for Employee Termination

Most employees in California are considered “at-will” employees, which means they can leave their job at any time, with or without notice. Conversely, it means that employers are free to fire them at any time, even if they haven’t done anything wrong. The unsavory truth is that you can be fired for virtually any reason – no matter how arbitrary – as long as it’s not against the law. 

If, for example, your boss arrives to work in a terrible mood because he had a fight with his spouse over breakfast and decides to fire the first employee he sees – and that person happens to be you – then that technically isn’t illegal (even though he should probably work on his anger management issues or go to a marriage counselor). 

However, if that same boss calls you a derogatory name for being a woman as he’s firing you and has a documented history of sexism or hostility towards female employees, then the plot thickens: that could be considered wrongful termination on the grounds of illegal gender discrimination in the workplace. Some of the most common unlawful reasons for termination include:

  • Termination motivated by discrimination
  • Termination in violation of public policy
  • Termination for exercising employee rights, such as requesting maternity leave or sick leave
  • Termination for whistleblowing or reporting a violation of the law 
  • Termination that violates the terms of an employment contract, either written or oral

Discrimination Claims

1. General

Wrongful termination rooted in discrimination is one of the more common scenarios in this area of the law. Employers are not allowed to fire an employee based on certain characteristics that are protected under California’s Fair Employment and Housing Act (FEHA) – which is the state’s most prominent anti-discrimination law. These characteristics can include:

  • Race, color, ancestry, or national origin
  • Religion
  • Sex (including pregnancy, childbirth, and related medical conditions)
  • Disability: either physical or mental
  • Age (if the employee is 40 and older)
  • Genetic information
  • Marital status
  • Sexual orientation, gender identity, or gender expression
  • AIDS/HIV
  • Medical condition
  • Political activities or affiliations
  • Military or veteran status
  • Status as a victim of domestic violence, assault, or stalking

If you believe your termination was primarily motivated by any (or a combination) of the above characteristics, then it’s possible you were the target of unlawful discrimination and may have a case for wrongful termination on those grounds.

Moreover, an employer is not allowed to create a work environment that willfully excludes, harasses, or puts any member of these protected classes at a distinct disadvantage. If an employee is forced to quit because he or she could not tolerate a particularly hostile work environment that targets a protected group, it is called constructive discharge. While these types of cases are typically harder to prove because the employee technically resigned (as opposed to being terminated), California courts do recognize them as wrongful termination if the right evidence is provided. 

2. Immigration Status

Additionally, California laws protect employees against discrimination based on immigration status, which essentially means that non-citizens and U.S. citizens are equally entitled to the same general protections against discrimination.

These laws also offer some protections to unauthorized immigrants. This is not to say that employers are allowed to hire or continue to employ undocumented immigrants (that is still against the law, so they do need to consider an employee’s immigration status in that sense), but it does limit an employer’s ability to:

  • Make unnecessary inquiries about a person’s immigration status
  • Make abusive requests for paperwork
  • Ask to see any documents that aren’t required by the federal government

Moreover, California’s AB-263 prohibits employers from retaliating against employees by using threats related to their immigration status. For example, if a worker complains about being paid much less than other workers and the employer uses her immigration status as leverage to either continue paying her a substandard wage or to fire her, that is illegal.

3. Political Affiliations

California laws prohibit employers from taking adverse actions against employees for their political views or activities, such as being a member of a political party, running for office, stumping for a candidate, or attending political rallies. 

Additionally, businesses are legally prohibited from coercing their employees into adopting company politics, or from retaliating against employees who oppose them. For example, this may include threatening or enacting termination if an employee votes for the “wrong” candidate. 

During a time when the lines between a corporation’s public political opinion and their “brand” become increasingly blurred, it’s important to remember that businesses cannot in any way coerce their employees into adopting a certain political stance for any reason.

4. Criminal Conviction History

While employers are within their rights to request permission to perform criminal background checks on employees and job applicants, those rights have their limitations.

The California Fair Chance Act of 2018, also known as “Ban the Box,” prohibits employers from asking about the criminal record of a job applicant before making a job offer. After a job offer is made, the employer can run a criminal background check and – if the applicant has a history – make a decision based on the severity of the crime and how much time has passed since the conviction. 

However, any employer wishing to run criminal background checks on employees or applicants must do the following: 

  1. Get their prior written consent
  2. Identify the conviction(s) that they find problematic
  3. Provide them with a copy of the record
  4. Allow them at least 5 business days to respond
  5. Notify them in writing that they intend to fire the employee or disqualify the applicant based on the results of the report. 

If the employer fails to do any of these things, it could be grounds for a lawsuit. 

Unlawful Retaliation Claims

Simply put, employees cannot be fired for exercising their legal employment rights. Likewise, they cannot be punished or retaliated against for enforcing those rights or for complaining when those rights have been violated by the employer. For example, you may not be fired for:

  • Filing a complaint or reporting unlawful discrimination or harassment
  • Complaining about unpaid wages or discussing your income with other employees
  • Reporting illegal wage and hour practices (such as unpaid overtime or illegal tip sharing arrangements)
  • Complaining about unlawful work conditions or reporting a health and safety issue to a government agency
  • Filing a worker’s compensation claim
  • Requesting or taking family and medical leave
  • Taking maternity leave
  • Requesting or expressing a desire to take lactation breaks throughout the workday
  • Requesting time off to vote or to serve jury duty

Violation of Public Policy

While retaliation claims are confined to employment law, public policy claims relate to illegal or unethical behavior in a broader sense. Employers are not allowed to terminate employees if the reason for doing so violates a fundamental public policy on a state or federal level. 

The most common example of this is when an employer fires someone who refuses to participate in illegal activity or who protests fraudulent practices. For example, an employee is asked by his manager to lie to the IRS about the company’s purchases from the previous year. The employee refuses, and he is subsequently fired. 

Public policy claims are an important exception for “at-will” employees – because even though the reason for firing someone may not technically violate an employment law, it may violate a public policy on a state or federal level. The overarching principle with this type of wrongful termination claim is that no one should be punished, let alone terminated, for refusing to do something illegal.

Contract Claims

Another possible exception to “at-will” employment is if the employee can prove that they entered into a contract – either verbally or in writing – with the employer. For example, if an employee received a written contract when they started a job, it may promise employment for a specific length of time or may explicitly limit the employer’s ability to fire them without good reason. If the employer violates those terms, then it can be construed as wrongful termination. 

The “contract” can be legally defined in other ways, too. Sometimes, wrongful termination claims can be made on the basis of an “implied contract.” For example, an employer may create an implied contract by issuing an employee handbook listing specific reasons why employees may be fired. 

A contract can also take the form of a verbal agreement that is understood by both parties, such as telling an employee in conversation that their job is safe as long as they don’t underperform. Oral contracts of this kind are obviously harder to prove, so it’s good practice to document things, such as written memos of conversations and events. 

How To File A Wrongful Termination Lawsuit

If you think you were wrongfully terminated, you should contact an experienced wrongful termination lawyer as soon as possible. You will need to gather all written documents from your employer that may be relevant to your termination (such as your termination letter, copies of performance reviews, employee contracts, employee handbooks, pertinent e-mails, memos and written records of conversations, any signed documents, etc.). 

An attorney can help you sift through all available evidence related to your case to determine your strongest claims and what is the best legal angle to approach the lawsuit. It’s also important to act quickly, because the deadline to file a wrongful termination lawsuit can be quite short. The statute of limitations will depend on what kind of claim you are bringing, but in California it’s typically between 2 to 3 years from the date of your termination. 

Damages in Wrongful Termination Lawsuits

If your case is strong, you may be able to recover several types of damages under California wrongful termination law. The damages will depend on the facts surrounding your termination and what kind of case you’re bringing, but they can include:

  • Compensatory damages including any lost wages, back pay, and benefits than an employee could reasonably have been expected to earn had they not been wrongfully terminated. In some cases, this may also include damages for emotional distress, mental suffering, anxiety, grief, and/or humiliation as a result of the wrongful discharge.
  • Legal Fees including attorney fees, court costs, and expert witness fees. For certain cases, it’s possible that the employer will be required to cover these costs. 
  • Punitive Damages which are designed to punish the defendant for additional damages that are not necessarily related to the economic loss the plaintiff has suffered.
  • Punitive damages are usually only awarded in cases where the employer is guilty of oppression, fraud, or malice and can also serve to deter the defendant from committing similar heinous acts in the future. 
  • Reinstatement is when a wrongfully terminated employee is able to get his or her job back.

Hire A Wrongful Termination Attorney Today

As you can see, being let go from your job is not always so cut and dried, and sometimes it may be illegal. The laws – especially in California – can dig pretty deep to protect those who have been unlawfully terminated, you just need to know where to look. If you think you might be one of those people, speak to one of our Los Angeles wrongful termination attorneys today to see if you have a case, or call us at 866-951-3901 for a free consultation.


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