What qualifies as wrongful termination?

A termination is wrongful if the employer fires or laid off the employee on the employee based on a protected class such as sex, gender, race, ethnicity, religion, or age.

Author: Brad Nakase, Attorney

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Wrongful termination in California occurs whenever an employee is fired for an illegal reason. Wrongful termination may also be called wrongful firing, wrongful discharge, illegal discharge, wrongful dismissal, illegal termination, and illegal dismissal. 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 violation of California and federal anti-discrimination law, employment contracts, or labor laws. Labor laws may include whistleblower laws. The court may order the employer to pay the employee’s payment of lost wages, expenses and even punitive damages.

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 illegal. Therefore, an employer can terminate an employee at for any reason at any time – bad, good, unfair, or no reason at all, – as long as it is not an illegal or unlawful reason.

In this article, our wrongful termination attorney in California answers the following frequently asked questions:

Is an unfair termination a wrongful termination?

When an employer fires an employee that seems unfair, unreasonable, or unjustified does not mean it is wrongful. However, if an employee has an employment contract and was fired for unfair reasons, the employee may have claim for wrongful termination on the basis of violation of the covenant of good faith and fair dealing. The main difference between wrongful termination and unfair termination is that wrongful termination involves a violation of a legal right or public policy.

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.

Can you get fired for talking politics at work?

An employer can commit wrongful termination if they fire an employee for their political views or activities. Under employment laws, employers may not fire you, or otherwise retaliate against you, for your political speed, conversation, activities or political beliefs.  Under California employment laws, employers can’t prohibit workers from engaging in political activity. An employee is free to express their political opinions in the workplace.

Is discrimination and wrongful termination the same thing?

Wrongful termination occurs due to discrimination or harassment in the workplace. In many cases, wrongful termination occurs due to discrimination or harassment in the workplace. It is wrongful termination to discriminate on the basis of gender, race, religion, origin, citizenship status, medical history, or marital status. This means that anyone who is terminated because of their race, medical condition, sex, race, disability, etc., can file a wrongful termination claim.Employees often cite discrimination as the reason for their wrongful termination lawsuit.

Illegal retaliation occurs when an employer takes some tangible action against an employee for exercising his or her rights under anti-discrimination, whistleblower or certain other laws. Retaliatory firing occurs when an employer fires an employee for anything other than a work-performance related reason. Employment laws prohibit employers from retaliating against employees for asserting their protected activity. An employee engages in protected activity when they: (1) engage in other protected EEO activity; (2) participate in an employment discrimination proceeding; or  (3) oppose a practice they consider to be discriminatory.

An employer cannot retaliate against an employee for protected activity includes: (1) reporting a work-related fatality, injury or illness; (2) participating in safety committees; (3) instituting or testifying in safety proceedings; and (4) complaining about unsafe or unhealthy working conditions.

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

A wrongful termination includes constructive termination in California.  Constructive termination occurs when the working conditions were so intolerable, that the employee had no choice but to quit. You can sue an employer for wrongful termination even if you resigned rather than being fired. Quitting your job doesn’t prevent you from filing a lawsuit against the employer employer but you must have legal grounds to sue.

Are Older Employees Protected from Wrongful Termination?

There are laws protecting older employees. A California law, the Fair Employment and Housing Act,  prohibits employer discrimination against job seekers who are 40 years of age or older. The Federal Age Discrimination in Employment Act of 1967 prohibits age discrimination in employment to workers who are 40 years of age or older. The law prohibits discrimination in all stages of employment, as well as retaliation, harassment, and policies that unfavorably impact older employees. Age discrimination involves treating an applicant or employee less favorably because of his or her age. Age harassment involves unwelcome and offensive conduct in the workplace that is based on a person’s age (age 40 or older). 

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