what is considered wrongful termination

Wrongful termination is when an employer ends an employment relationship with an employee in a way that violates the employee’s rights.

California is an “at-will employment” state, which generally means that an employee is free to leave their job at any time and for any reason, and an employer can terminate an employee without specifying the reason. In California, employment is considered at-will unless the employer and employee have a contract that addresses the employer’s right to fire the employee.

There are some exceptions to at-will employment and the ability to terminate an employee for any reason (or no reason) that if violated, might be considered wrongful termination. California termination laws prohibit firing an at-will employee for any of a number of unlawful reasons.

What are Some Unlawful Reasons to Terminate an Employee

unlawful reason to terminate an employee

California wrongful termination laws prohibit firing an employee for a number of reasons that the court would consider illegal. California has labor and employment laws that specify some protections afforded to all employees, including those who are “at-will.”

The most common wrongful termination claims are those alleging some form of employment discrimination under the California Fair Employment and Housing Act (FEHA). FEHA applies to employers with five or more employees. It prohibits discriminating against employees for the following reasons:

  • The employee is over age 40
  • Race, color, national origin
  • Religion
  • Physical or mental disability
  • Pregnancy
  • Medical conditions
  • Genetic information
  • Marital status
  • Sex, gender, gender identity, gender expression, sexual orientation
  • Military or veteran status

Firing someone for any of the following reasons can also be considered wrongful termination:

  • The employee’s political affiliation or beliefs.
  • The employee is a victim or a crime and must appear in court as a witness in that crime.
  • The employee is a victim of domestic violence, sexual assault, or stalking and must miss work to get a restraining or protective order.
  • In retaliation for an employee reporting or filing a complaint regarding some violation of the law, such as health and safety violations, unpaid wages, labor law violations, or discrimination and harassment.
  • Retaliation for being a whistleblower.
  • An employee taking time off that is allowed by federal law, such as the Family Medical Leave Act (FMLA).
  • An employee taking time off that is guaranteed by state law, such as the California Family Rights Act (CFRA) that requires employers of 50 or more employees to give their workers time off for the birth of a child, adoption, or a new foster care placement, or to care for their own or a family member’s serious health condition. The New Parent Leave Act offers similar protections for parents who work for an employer with 20 or more employees.
  • Constructive termination, or failing to address working conditions that are so unsafe or intolerable that an employee is more or less forced to quit.
  • Violating the Worker Adjustment and Retraining Notification (WARN) Act that requires sufficient notice before mass layoffs.
  • The employee filed a workers’ compensation claim.
  • Firing an employee for a reason that is against public policy. One example would be terminating an employee who refused to do something illegal.

In some cases it might be wrongful termination if an employee is fired because they speak a different language while at work. There are some exceptions, such as when speaking a language (usually English) is necessary to the operation of the business, the employer has notified their employees that they must speak English, and have communicated the consequences for not doing so.

Can I Sue My Employer for Wrongful Termination in California?

If you think you have been wrongfully terminated you might be able to file a lawsuit against your employer and recover damages. In some cases a successful wrongful termination lawsuit results in you being able to get your job back.

Filing a lawsuit in court might not be the first step, depending on the circumstances of the alleged wrongful termination. It might be necessary to file an administrative complaint with a government agency first. For example, an employee whose wrongful termination claim is based on a violation of the Fair Employment and Housing Act should first file a complaint with the California Department of Fair Employment and Housing.

How Do I Prove Wrongful Termination, and What Is My First Step?

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Each type of wrongful termination has a set of elements that the plaintiff must prove to be successful in court. In any case the employee will need to present evidence that an employment relationship existed and that the employer terminated the employee (or that the employment was constructively terminated).

Particular types of wrongful termination cases will require additional elements:

  • Discrimination Claims: the employee must prove that they are a member of a protected class and discrimination was the motivating factor for their termination.
  • Harassment Claims: the employee must be able to prove that the reason they were fired was because of their objection to being harassed.
  • Breach of Contract Claims: the employee must prove that they had a contract with their employer. They must have evidence that their termination violated the terms of the contract. Breach of contract claims include those based on a violation of company policies or labor union terms.
  • Public Policy Claims: the employee needs to prove that they were fired for one of the protected reasons based on public policy:
    • Refusing to violate a statute or break the law
    • Performing a statutory obligation
    • Exercising their constitutional rights
    • Reporting the violation of a statute for the benefit of the public

The first step in any wrongful termination claim based on the protections in the Fair Employment and Housing Act (claims of discrimination, harassment, or retaliation) is to file a a pre-complaint inquiry with the California Department of Fair and Employment and Housing. The inquiry can request that the Department investigates the wrongful termination claim and resolve it themselves, or request a right to sue notice. The right to sue notice paves the way to take the claim to court.

California employment lawyers are familiar with the requirements and the process and can help you gather the necessary evidence and make sure your claim is filed in a timely fashion.

How Long Do You Have to File a Wrongful Termination Lawsuit in California?

You must file your wrongful termination lawsuit within the statute of limitations. The statute of limitations specifies the amount of time a plaintiff has to file a lawsuit once they have been harmed. The statute of limitations will depend on the nature of your claim and whether you had an employment contract with your employer. In all cases, the statute of limitations starts running on the date of termination.

The statute of limitations is two years if your lawsuit is based on the breach of an implied oral contract or a violation of public policy. The statute of limitations for a claim based on state whistleblower protections is three years. An employee whose claim is based on whistleblower protection under federal law has 180 days to file a complaint with the United States Department of Labor.

Wrongful terminations cases based on a violation of the Fair Employment and Houston Act (FEHA) or the WARN Act must be filed within three years. Claims based on FEHA should start with a complaint filed with the California Department of Fair Employment and Housing.

Do I Need to Hire a Lawyer for Help with Wrongful Termination in California?

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It is in your best interest to consult with and discuss your wrongful termination claim with a California lawyer. Wrongful termination claims can be difficult to prove, therefore it is recommended that you hire an experienced employment law attorney to go through the process with you.

A lawyer can help you gather the necessary evidence to prove the elements of a wrongful termination lawsuit. They will also be able to help file necessary documents with the appropriate government agency and/or court. Your attorney can negotiate on your behalf and represent you in court.