8 FAQ Answer: Employees Must Know About Wrongful Termination

Brad Nakase, Attorney

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Cindy has worked at a coffee shop for the past five years. Currently, she feels she is due for a promotion to a managerial position. However, she is frustrated to discover that a younger, less experienced employee has received the promotion instead of her. Cindy goes to her employer to complain about the unfairness of the situation, and the employer sternly tells her to stop whining and get back to work. Despite this, Cindy continues sulking, and her behavior affects the atmosphere at the shop. As a result, Cindy’s employer terminates her. Shocked and angry, Cindy wonders if she has a case for wrongful termination. Perhaps she was fired for being too old – it would explain why a younger employee got the promotion. Perhaps her employer denied her freedom of speech. Cindy wants to file a wrongful termination suit making these allegations of unfairness. However, does Cindy have a case? Just because she felt she was treated unfairly, does that mean her termination was wrongful? When Cindy talks to a lawyer, he explains to her that she does not have a strong case for wrongful termination. This is because in the eyes of the law, unfair does not always mean unlawful. Cindy’s employer had the right to promote whoever he or she saw fit. There is also no evidence of discrimination in Cindy’s time at the coffee shop. Therefore, Cindy was not wrongfully terminated.

1. Can you file a wrongful termination lawsuit?

If an employee believes that he or she has been unlawfully fired from their job, he or she may file a wrongful termination claim in court. These claims are based on the alleged breaking of federal or state anti-discrimination law, employment contracts, or labor laws. Labor laws may include whistleblower laws.

An employee may also file a wrongful termination claim if he or she believes their termination happened due to sexual harassment. He or she may also file the claim if they believe the termination happened in retaliation to either a complaint or a workers’ compensation claim.

However, in a legal sense, wrongful does not always mean unfair. While it can be irritating and frustrating for an employee to lose his or her job, often the termination reflects a mere difference in opinion. The employee interpreted their work performance differently than their employer.

A termination is only wrongful when it is considered wrong in a legal sense. As a result, people often misinterpret what counts as wrongful termination.

2. Does a Termination That Seems Unreasonable Qualify as Wrongful Termination?

In California, employees are hired on an at-will basis, which means that they may be fired at any time for any reason. An employer may, in fact, terminate an employee for no reason at all. Believe it or not, an employer can choose to fire an employee for using a cell phone or chewing gum. Unless an employee signed an employment contract with their employer, he or she may be fired for any reason under the sun. However, if the employment contract requires that there be a cause for termination, then the employee must be granted one. This means that if the employee is fired without a reason given, he or she may file a wrongful termination claim.

It should also be noted that federal and state employment laws, such as discrimination laws, apply even in at-will states. An employee who is fired for an unlawful reason such as discrimination can sue their employer for wrongful termination.

Example: Howard works at a warehouse in Los Angeles. Here he is an at-will employee. For two years he has been performing well, and he feels his job is safe. However, due to company finances, his employer has been planning to fire some employees to save money. The employer ends up firing Howard, who is confused and furious. However, Howard did not sign an employment contract with his employer, so he can legally be terminated for any reason or no reason at all.

3. Can you get fired for talking politics at work?

In California, an employee is free to express their political opinions in the workplace. However, this freedom is only preserved in California, Connecticut, South Carolina, and Louisiana. There are laws in these four states that protect an employee’s right to express his or her political views in the workplace.

Other states also have certain laws that protect a citizen’s right to attend political rallies or to support politicians. However, if an employee in one of these states is terminated for a political reason, he or she should speak with an employment lawyer to see if their case qualifies as wrongful termination.

Example: Outside of work, Judy is a proud political activist in Los Angeles. After a major election, she returns to the office wearing a pin supporting her favorite candidate. Her boss, who voted for the other guy, fires her out of spite. Judy has a case for wrongful termination, because California employees are allowed to express their political opinions at work.

4. Is discrimination and wrongful termination the same thing?

In the United States, every person with a gender, race, religion, origin, citizenship status, medical history, or marital status is eligible to be protected under workplace discrimination laws. Essentially, just about everybody is protected against discrimination.

In fact, anybody can face discrimination at the workplace. This goes for both males and females, regardless of whether they have minority status.

This means that anyone who is terminated because of their race, medical condition, sex, race, disability, etc., can file a wrongful termination claim.

Example: Tommy recently got hired at a shop selling makeup and skincare products. The store’s manager is a woman, and all the other employees are also female. One day, Tommy overhears a coworker talking with his boss about how they wished it was only women working at the store. Later, Tommy is fired for no apparent reason, and shortly thereafter, a woman with less experience is hired in his place. Tommy has a case for wrongful termination based on discrimination against his sex.

It is possible for an employee to prove that he or she was terminated in retaliation for reporting an illegal practice at their workplace. In fact, federal laws protect whistleblowers from retaliation. Similarly, several states have laws protecting whistleblowers who report their employer’s unlawful actions. Employers are not allowed to punish or terminate employees who report wrongdoing or unlawful activities.

Example: Theo works for a tech company in Los Angeles. By accident, he discovers that his employer has been committing fraud in order to financially benefit the company. Driven by his sense of right and wrong, Theo reports his boss to government law enforcement. As a result of his whistleblowing, Theo is fired. Under California law, Theo is protected as a whistleblower for reporting his employer’s unlawful actions. Therefore, his termination is wrongful.

6. If an employee quits, can they sue their employer for wrongful termination?

Many people believe that when an employee quits their job, they cannot file a wrongful termination lawsuit against their employer. Sometimes, a work environment is so hostile or toxic that an employee has no choice but to leave the organization. Their only option is to quit. However, in these instances, it is still possible for an employee to sue their employer. Even if an employee has been forced to resign, they are still able to file a wrongful termination claim.

Example: Josh works at an office where every day he is verbally abused by his supervisor. The harassment has become so bad that Josh’s health is being harmed. When the atmosphere becomes intolerable, Josh is forced to quit his job. He worries that he will not be able to file a wrongful termination lawsuit because he technically quit and was not fired. However, he is still able to file a wrongful termination suit because the poor work environment forced him to leave his job.

7. Are Older Employees Protected from Wrongful Termination?

Employees older than forty years old may believe that they are protected by the Age Discrimination in Employment Act (ADEA) of 1967. However, the act only protects applicants and certain eligible employees. These eligible employees include those who have a private employer with 20 or more employees.

If an employee is covered by the ADEA, then he or she may sue their employer based on age discrimination in termination, hiring, and privileges.

Example: Lindsay has been working for a retail store for ten years. At forty-five, Lindsay is the oldest salesperson. Lindsay’s employer prefers having younger employees to better cater to their young clientele. As a result, the employer fires Lindsay for her age. Because the company has twenty employees, Lindsay can file a wrongful termination lawsuit based on age discrimination.

8. Do Employees Settle Quickly to Protect Their Reputation?

An employer may not settle quickly if there is a lack of facts or solid evidence behind a wrongful termination claim. Companies and their lawyers are rarely concerned with these sorts of claims unless the victim involved is a public figure or celebrity. Therefore, do not expect that an employer will look to immediately settle. For this to happen, the employee’s case would have to be very strong and undeniable.

Example: Gary was recently fired from his job, and he believes that he has a wrongful termination case based on harassment. Gary thinks that his employer will want to settle quickly in order to avoid bad press. However, Gary did not take the time to document the harassment in writing, nor did he report it to human resources when it occurred. Therefore, the case is not very easily proven. As a result, Gary spends months in court trying to prove his case.

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At Will Employment

At will employment means that the employer or the worker may end the employment relationship at any time. When an employment is at will, the employer can terminate employees for no reason.

Can You Get Fired for Looking for Another Job?

Firing an employee for looking for another job is legal under California Labor Code § 2922. Employees in California are employed on an “at-will” which means the employee or employer can terminate the working relationship at any time for any reason.

Can an employee be terminated while on medical leave?

It depends on the reason the employee is on medical leave. Under the FMLA, an employee cannot be terminated simply because they take leave. An employee is free to take medical leave without fear of losing their job. However, if there is a reason unrelated to the medical leave, an employer does have the right to terminate an employee.

Can Slack Admins Read DMs?

Yes. Slack admin and employer can read every DMs, private channels, private messages sent between team members. Employers on either Slack's free tier or paid tier need to submit a request to Slack before they can access your private chats.

Four Hour Minimum Pay

Yes - under California employment law, when an employee is scheduled to work an eight-hour shift, and the work is canceled, the employer must pay a minimum of four hours.

How far back do PAGA claims go?

A PAGA claim is generally one year from the date of the last employment law violation on which the PAGA claim is based.

FICA Withholding: What is FICA tax on my paycheck?

What is FICA tax on my paycheck? FICA is a federal wage tax. FICA taxes requires withholding from an employee’s gross earnings: 6.2% for social security and 1.45% for Medicare. The employer matches these percentages for a total of 15.3%.

Why Does EDD Do a Benefit Audit?

The EDD conducts benefit audits to help pay Unemployment Insurance benefits to only eligible claimants only, prevents fraud in the UI program, and helps companies control UI costs. The EDD’s responsibility is to collect payroll taxes and conduct payroll audits of businesses.

What Does PAGA Mean in a Lawsuit?

The word PAGA is an acronym for the Private Attorney General Act, which is the Labor Code that authorizes employees to file a lawsuit to recover civil penalties for themselves and other employees. PAGA confers a private right of action to individuals to prosecute under PAGA and incentivizes the employee to keep 25% of collected civil penalties.

What does an employment lawyer do?

An employment lawyer help employers and employees understand their respective rights and obligations, such as wages, wrongful termination, overtime, PTO, disability, discrimination, harassment, etc.

Can my employer call my doctor?

Generally, yes, your employer can call your doctor; however, the questions your employer ask is limited and protected by HIPAA Privacy Law. Your employer has the right to contact your doctor to verify the authenticity of a doctor’s note but cannot ask about your medical condition or diagnosis.

Can I Be Fired for Work Restrictions?

State and federal laws protect employees from employers firing employees because of work restrictions. If you’re fired at work, please get in touch with our employment attorney for a free consultation on work restrictions ignored by the employer.

What Qualifies as an EEOC Complaint?

The EEOC is a federal agency that investigates workplace discrimination and harassment based on race, gender, ethnicity, national origin, age, religion, medical status, and disability. There are time limits for filing a complaint with the EEOC.

EEOC Complaint Process

Before filing an EEOC complaint, employees should understand the entire EEOC complaint process. This article answers many Frequently Asked Questions on the EEOC complaint process.

Do guys get paid paternity leave?

A father is eligible for paternity leave if three conditions are met: 1) welcome a new child within the first twelve months; 2) Paid into the State Disability Insurance; 3) Has not taken more than eight weeks of paternity leave in the past twelve months.

California PTO Payout Law

California law declares vacation time to be earned wages, and vacation time is accumulated as work is performed. So, an employee who has the right to ten days of vacation per year will after six months of work earn five days of vacation time.

Suing For Unpaid Wages California

It is totally unfair for an employee to work and not get paid; employees have bills and rent to pay. Employees suing for unpaid wages in California can get help from an employment attorney.

How Much Does It Cost To Hire a Lawyer To Sue My Employer?

People often ask me how much does an employment lawyer cost? Employees generally have claims against the employer, and an employment lawyer typically works on a contingent fee - meaning there is no fee unless the lawyer wins the employee's case.

Employee Management

Employee management is the process of aid employees to do their best work daily to achieve the company’s goal. Employee management helps improve employee satisfaction and productivity to help a company achieve its overall goals.

Is It Legal To Pay Employees Cash Under the Table?

Paying employees in cash is not illegal but frequently employers do not comply with employment laws concerning paying in cash. Employees' lawsuit against the employer for paying in cash has resulted in settlements averaging $100,000.

What is a demand letter?

A demand letter is a letter that is commonly written by a lawyer on behalf of a client setting forth facts supporting a demand for money. A demand letter is usually the first step in resolving a dispute between two opposing parties.

EEOC Discrimination

Learn about the various types of EEOC-prohibited discrimination. The EEOC protects employees from discrimination based on gender, race, ethnicity, gender, religion, national origin, age, disability, etc.

Standard PTO Policy for Small Business

A standard PTO for small businesses depends on the years an employee worked for the company. On average, the standard PTO for one to five years is ten days and six to ten years averages fifteen days.

Retaliation for Reporting Harassment at Work

An employer who punishes an employee who reported sexual harassment in the workplace violates state and federal law and is liable for retaliation. Examples of retaliation include demotion, fewer working hours, segregation, or termination.

Obscene and Sexual Gestures a Work

We're not talking about the ubiquitous middle finger that says fuck you. Obscene and sexual gestures at work may include two fingers in a V shape, with a tongue in between. 

Quid Pro Quo Sexual Harassment

One of the most common types of sexual harassment is Quid pro quo sexual harassment, and it is one of the easiest to hide. All types of workplace sexual harassment are illegal.

Reporting Time Pay

Wages are what we mean when we use the term "reporting time pay." If employers do not pay all of this at the moment of an employee being terminated, there may be waiting time penalties involved.

Can I Sue My Employer For Not Paying Me Correctly?

Employees work hard and deserve to be paid correctly, and on time. It sucks when an employee works hard, and long hours only to be paid incorrectly while the boss is driving a Lambo or Benz.
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