Wrongful Termination FAQ

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you are firedWhen an employee is terminated from a job, there can be many legal issues. We have prepared common questions and answers which may apply generally to employees that have wrongful termination claims. However, each employment termination situation is unique. If the employee is a member of a union, many of these responses may not apply. Union employees should consult with an attorney or their union representative. If you have questions regarding employment termination, you should contact us for a free consultation.

Is it wrong for me to be fired for being late to work?

California Law provides that employment is presumed to be “at-will,”
unless the employment has a specified term greater than one month. Because of
“at-will” employment, employers are generally free to terminate
employees for any lawful reason whatsoever, or for no reason at all. An important
exception to this rule, is that the employer cannot violate a statute,
fundamental public policy or a contract, by terminating an employee. The most
common statutes protecting employees from termination, are those which prohibit
discrimination based upon certain characteristics, such as race, age, sex,
religion, pregnancy, disability, marital status or sexual orientation. Thus, if
the employer’s true reason for terminating an employee was solely because the
employee was late, and for no other reason, the termination would generally be
allowed. If the employee is a member of a labor union, they may have other rights
under their union agreement.

If I am in a union, can I still sue for wrongful termination?

Union employees work for their employer under a union agreement known as a
Collective Bargaining Agreement (CBA) or Memorandum Of Understanding (MOU). The
employee’s rights are set forth in the union agreement, Generally, the
employees must exhaust whatever procedure are set forth in their union
agreement before taking any court action. If the employee is in a union, they
should carefully review their union agreement and discuss the matter with their
union representatives or an attorney. Even if they are in a union, certain
termination actions may still be filed in court, such as suits alleging
discrimination, retaliation, and for reporting violations of the law by the
employer. Numerous other rules also apply.

My boss hired their friend to replace me. Is it wrong?

This is commonly referred to as nepotism. There is generally nothing illegal
about nepotism. Because employees are presumed by law to be at-will, employers
are usually free to choose their employees as they wish. However, certain
exceptions may apply, such as if the true reason for the replacement of the
employee was based upon discrimination or retaliation, or if the termination
breached a contract of employment.

Is it wrongful to be fired after ten years of employment?

Sometimes. Long -term employment may create an “implied” contract of
employment. However, because employees in California are presumed to be
at-will, it is often difficult to prove the existence of an implied contract of
employment. Sometimes, such an implied contract may be created by
representations of the employer of continued employment, by making statements
that the employee can only be fired for good cause, or that the employee will
stay with the company until they retire, etc. Additionally, terminations of
employees of forty (40) years of age, and after long-term employment, suggest a
possible age-based motive for the termination.

I am the oldest employee and I was fired. Is it wrong?

Not necessarily. If an employee is over 40 years old and is terminated, the
employee may have protection under the laws prohibiting age discrimination. The
determining factor is the motivation of the employer. Just because an employee
is the oldest and was fired, does not automatically mean that the employer
terminated the employee because of their age. However, if the termination was
motivated because the employee was over 40, then termination would generally be
illegal.

Is it wrong for my boss to harass me because they don’t like me?

Harassment is not necessarily illegal, unless it is based upon certain
protected characteristics, such as the employee’s race, sex, age, religion,
medical condition, pregnancy, disability, marital status or sexual orientation.
Unless the conduct is based upon these characteristics, the conduct may be illegal
usually not illegal. In fact, some courts have even held that some degree of
“harassment” is an ordinary part of most jobs. Further, if an
employee suffers stress or emotional injury as a result of on-the-job
harassment which is not based upon the protected characteristics stated above,
then the courts frequently hold that the employee’s exclusive remedy is to file
a worker’s compensation claim.

Does my employer need to give me the reason why I was fired?

Generally, No. There is no general requirement for the employer to provide any
explanation as to the reason for an employee’s termination. Many employers no
longer provide an explanation for the employee’s termination, in fear that the
explanation may not be entirely accurate. If, for example, an employee over
forty (40) years old is terminated, and the employer gives a reason such as
poor work performance, and later it is determined that the employee actually
had good work performance, the employee my argue that the false reason given by
the employer for the termination, was actually a “pretext” for age
discrimination.

Is it wrong for me to be fired because I was sick from work?

Employees who are terminated because they have lost time from work due to
illness or injury, may have rights under the federal ADA or the California Fair
Employment and Housing Act. Generally, an employer may not discriminate against
an employee because of certain medical conditions or disabilities. Several
exceptions apply, including, for example, whether the employer had a legitimate
business reason for the termination, or whether there were any statutory
requirements that the employer hold the position for the sick employee.

Does my employer have to hold my job for me, if I am on leave?

Generally, yes. If an employee is out on leave, they are usually out on leave
pursuant to an agreement with the employer, or under a statute, such as the
Family Medical Leave Act. There are numerous exceptions to this requirement and
detailed procedures. You should contact an attorney for advice.

I wouldn’t date my boss and was fired. Is it wrong?

Generally, yes. If an employer terminates an employee because they refused to
have a relationship, and impliedly a sexual relationship, it may be a form of
gender discrimination. These types of situations frequently include sexual
harassment, including overt conduct of a sexually derogatory manner and sexual
propositions.

Is it wrong to be fired for complaining against sexual harassment?

Yes. Both state and federal laws protect employees who complain about sexual
harassment and violations of the discrimination statutes. An employer may not
retaliate against an employee solely for making such a complaint.  However, some employers find a way to retaliate without being obvious.

Is it wrong to be fired because I complained about safety?

Employees are usually protected against retaliation for complaining about
violations of law, including those based upon safety. There are also numerous
“public policy” rights to complain about an employer’s violation of
laws or regulations, including, for example, the non-payment of wages or being
required to work under unlawful conditions. There is generally no requirement
that the complaint be made to a government agency, and a complaint to the
employer followed by retaliation, may be unlawful.

If I have a contract with my employer, may I be terminated?

Generally, the terms and conditions of your employment are stated in the
employment contract, which may provide for specific grounds for termination.
Even with a contract, employment may sometimes be terminated if the employee
breaches the contract. However, most employment “contracts” are not
complete contracts, but instead only provide the details of the agreement
regarding compensation. An employee with an employment contract should consult
with an attorney regarding their rights.

My employer terminated me in violation of the employee handbook. Is it wrongful?

Generally, employers are free to change their employment policies and
handbooks, or in some cases, disregard them. This is due to the
“at-will” nature of employment in California. However, under in some
cases, an implied contract to terminate an employee only for good cause, can
sometimes be created from an employee’s reliance on the employer’s personnel
policies. If, for example, an employer has an established policy that employees
are permanent after completing a probationary period, the employees can only be
terminated for certain rule violations, and that the employee is entitled to
“progressive discipline,” then the employee handbook may create an
implied contract to terminate only for good cause. However, the rules in such
cases are complex and an attorney should be consulted.

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