Is it legal for My Employer to Fire Me Without a Written Warning?
In law, one question often leads to others. When an employee asks if it was legal to be fired without warning, the answer is “it depends.” If the employee was part of a union, then the union agreement will cover what steps an employer must take to fire an employee. If the employee had a contract that stated they’d be employed for a certain period of time, then the written contract may govern it.
However, if like most employees in California, the employee in question was not part of a union and didn’t have a written contract, then essentially, it will depend upon the totality of the circumstances. Perhaps the employer’s handbook constitutes a de-facto contract, setting forth circumstances under which the employment ends. Perhaps the employee took action – like moving across the country and quitting another job – which would make it unjust for the employer to fire the employee.
In California, without a contract of some kind, employees are presumed to be “at will.” That means they can be fired for any reason. In fact, the employer is not required to give an employee a reason. This puts plaintiff’s side lawyers in a difficult position. It will be the employee’s burden to prove the employer was filed for reason that was illegal. Employees usually know when they are being discriminated against because of their age or race, but usually an employer is not going to tell an employee that they were fired because they prefer to employ young people, or those of a certain race.
In short, the facts are involved can make all the difference. Usually, it is the employee’s burden to prove the termination was wrongful. Racist or sexists texts or emails can be helpful, but the timeline of events can also be significant. Additionally, employees sometimes wait long periods of time to call a lawyer. As time passes, memories fade, witnesses move and people delete their texts, or change phones. The employee may not remember in a few months that they had a work-related injury a few weeks before their termination. In short, like the auctioneers used to say: “snooze, you lose.”
What Can My Employer Take Out of My Check?
The California Labor Code is clear on the subject – an employee must be paid “all wages” they are owed when their employment ends. But what if you’re a waitress and someone walks out on their check? What if you broke dishes? In short, it’s generally illegal for an employer to deduct anything that doesn’t fit into a short list of categories.
According to the Department of Industrial Relations, an employer can only deduct the following things from an employees check:
1. anything required or authorized by state or federal law
2. something the employee authorized, such as the employee’s share of insurance premiums, a benefit plan contribution
3. deductions authorized by a union agreement
If a cash register comes up short, or equipment is damages, it is generally considered a cost of doing business – not something an employee has to cover. In other words, it should be the restaurant owner’s problem if someone skips out on their check or a few dishes get broken. More specifics depend on the kind of business the employee is covered by in the Industrial Welfare Commission Orders and court case3s. For example, Barnhill v. Sanders (1981) 125 Cal.App. 3d 1, states that a balloon payment to repay an employee’s debt to an employer is an unlawful deduction even when the employee signed something agreeing to that. Another says it is unlawful to deduct current payroll for past salary advances when those advances were a mistake. In the case of commissions on sales, it is helpful if the employee has something in writing which states when those commissions were “earned.”