Do I have a case?
Only after an exhaustive review and analysis of your personal situation, can a lawyer render an opinion regarding a potential case. There are many factual considerations and legal issues that operate to establish liability and/or damages. Often, it is not just a matter of what specific reasons were given in a case, or what an employer said. An attorney's role is to evaluate the real motivation for the termination, not the stated reason. Also, there may be defenses that operate to bar recovery in full or part.
In California, employees are often referred to as "at will." This means they do not have a written employment contract, there is no reasonable expectation of secure employment, and they can be terminated "at will" by their employer. Such an employee, as a general rule, can be fired for any reason, even an unfair reason, or for no reason at all. It also means the employee can quit for any reason at all. This may seem unfair, but "fairness" is not the standard by which one judges whether a termination is illegal.
Although you may not have an express written contract, there are factual circumstances that give rise to an Implied Contract. Some examples involve the following factors:
(1) Long-term employee; (2) Consistent good performance evaluations; (3) Frequency and quality of salary or wage raises; (4) Assurances of future long-term employment; and/or (5) Employer violation of it's own progressive discipline policy in firing you
To be considered "wrongful termination" under the law, the termination must violate some fundamental public policy. This means a state or federal statute, regulation, or constitutional provision is violated by the termination. There are many examples. One illustration is the case in which the employer directs a worker to break a law, ordinance, regulation or statute. In that case, the employer cannot legally fire the employee for refusing such a directive. Additionally, if the employee complains about what (s)he reasonably perceives as a violation of law, such as a failure to pay overtime, failure to provide lunch breaks, failure to provide family or medical leave, late-payment of salary or wages, or workplace safety issues, and is fired in retaliation for being a "whistle blower," that would also constitute an actionable claim for wrongful termination.
Another type of public policy violation giving rise to a "wrongful termination" claim occurs when the employer's actual reason for firing the employee is based on some form of discrimination, such as an employee's race, religion, age, sex, disability, sexual orientation or national origin. These claims fall within the jurisdiction of the California Department of Fair Employment and Housing; after an administrative investigation or a "right to sue" letter is obtained from DFEH, one has a common law claim for wrongful termination in violation of public policy. The same applies to a termination made in retaliation for an employee's opposition to or complaints regarding discrimination or harassment based on any of the protected classifications. For example, an employee that complains of sexual harassment, and is then subjected to unwarranted work-related criticism, disciplined, written up, or fired, would have a claim for retaliation under both state law [DFEH] and common law.
As a practical matter, employees often recover more by suing under state statute than at common law. For example, attorney's fees and expert witness fees may be awarded under a cause of action for a violation of DFEH, but are not recoverable on common law wrongful termination/public policy claims.
What conduct is generally not actionable?
Generally, yelling, screaming, demeaning language, or unfair workload, is not considered "unlawful" if it is based upon a personality conflict. If your supervisor treats everyone poorly, regardless of their race, religion, sex, or age, you might not have a case. Such conduct, however, will be considered illegal if the harasser is motivated by malice and/or ill will against you that is based on some protected characteristic or classification set forth above.
For example, if your supervisor makes racially or sexually offensive comments, or demeans and belittles you, but does not harass workers of a different religion, younger workers, those of a different sex, or of other races, you may have a harassment case.
It is important to understand that only "unwelcome" harassment that is sufficiently severe or "pervasive" to create a hostile or abusive work environment is unlawful. Therefore, trivial or isolated harassment, even if based on some protected classification, may not be deemed unlawful. As a general rule, the more severe the incidents (i.e., physical contact is more severe than offensive language) the less frequently they need to happen before it is considered illegal. In other words, If the harassing conduct is less severe it must be regular or constant. Also, since only "unwelcome" harassment is illegal, you must make it clear to the harasser that you find his/her conduct unwanted and offensive.
If a co-worker is the one causing the harassment, you will usually need to show your supervisor "knew or should have known" of the wrongdoing, but nevertheless failed to take action to correct it. It is the employer's duty to prevent, investigate and remedy these allegations.
Therefore, if the offensive conduct continues after you have told the harasser you are upset about and do not want it to continue, you should: (1) Report the conduct to your supervisor; (2) Document the date, time, place and any witnesses of all contact with the harasser and the supervisor whom you informed of the situation; and (3) contact Spital and Associates for a free consultation. Our law firm will most likely recommend you file, at a minimum, a formal, written complaint with your employer's Human Resources Department.
If you are fired, you should ask your employer: (1) To put the reason for your termination in writing and provide this to you for your records; (2) Ask to review and copy your personnel file; and (3) Contact Spital and Associates for a free consultation.
What are valid defenses to charges?
There is a Statute of limitations that bars recovery if an action is not taken within a defined period of time. Depending upon the jurisdiction or theory of the case, the time period may be different. You should always consult with an attorney regarding such issues. Additionally, lack of sufficient evidence or no proof will bar recovery, as in the case of (complained) conduct that never happened. Occasionally, the complaining employee is not a credible observer.
What are my damages?
If an employee is terminated illegally, (s)he may recover some or all of the following:
(1) Lost Wages; (2) Lost Benefits (medical, health, vacation, sick leave, etc.); (3) Emotional Distress Damages; (4) Punitive Damages; (5) Reinstatement of their employment; (6) Promotion; (7) Attorney's Fees.
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