There are State and Federal laws in place that prohibit employers from terminating employees for reasons of discrimination, whistleblowing or making discrimination/unlawful conduct complaint[s], or refusing to participate in illegal activities. The most common form of wrongful termination is that based on discrimination.

In the United States, Los Angeles included, wrongful termination is the act of an employer firing an employee illegally, or as a violation of their own company policy. Other instances of wrongful termination include, but are not limited to:

• Discrimination: Race, color, creed, nationality, religion, gender or sexual orientation all fall under discrimination. Discrimination also includes age, physical or mental disability, medical conditions, use of lawful leave rights, and military or reserve status.
• Retaliation: Whistleblowing or cooperating with the prosecution of wrong doing within a company are just two examples of retaliation
• Refusal to Commit a Legal Act: Shredding compromising paperwork, covering up theft, embezzlement or manipulated accounting numbers are all illegal
• Violating Company Procedures in Terminations: If a company handbook requires that a supervisor provide a verbal warning, written warning and final meeting of notice that a job is in jeopardy before firing an employee, but later skips each of those steps in the termination process, that is a breach in the procedure and is considered wrongful
• Protected Absences: Taking time off to vote, serve on jury duty, protected absence under the Family and Medical Leave Act (FMLA), or military service
• Sexual Harassment: termination as retaliation for reporting sexual harassment or unfounded accusations of sexual harassment without proper investigation or substantial evidence to support such a claim

Modern wrongful termination laws trace their roots to Title VII of the Civil Rights Act of 1964, which makes it illegal for employers to discriminate against employees on the basis of race, color, religion, sex, or national origin. Furthermore, retaliation against an employee for opposing any practice that violates Title VII of the Civil Rights Act is prohibited. California has adopted the provisions of Title VII as state law through California’s Fair Employment and Housing Act (FEHA).

Today, there are a multitude of laws that affect protect employees against termination based on discrimination:

• Title VII of the Civil Rights Act of 1964;
• Age Discrimination in Employment Act (ADEA);
• Pregnancy Discrimination Act of 1978;
• Vocational Rehabilitation Act of 1973;
• Americans with Disabilities Act of 1990 (ADA);
• Vietnam Era Veterans’ Readjustment Assistance Act of 1972;
• Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA);
• California Fair Employment and Housing Act (FEHA);

Isn’t California an “At-Will” Employment State? How Does This Affect a Claim for Wrongful Termination?

No employee, even an at-will employee, can be terminated for an unlawful reason or for a purpose that violates fundamental public policies. California has a presumption of at-will employment when an employment contract neither states to the contrary nor defines a definite period of employment. This means that employers may terminate an employee at any time, and the employee can quit at any time. This does not mean that employers are allowed to break employment and anti-discrimination laws when terminating employees. Violations of anti-discrimination laws do not protect employers from a wrongful termination action simply because they reside in an at-will state like California.

At-will laws are not intended to make persons feel unsecure in their jobs or their ability to provide for themselves or their families. Termination from employment, depending on the circumstances, may provide recourse against the employer.

In order to overcome the at-will presumption, the employee must demonstrate that:

1. State or Federal law provides an exception to the at-will rule;
2. Public policy – such as anti-discrimination laws – prevent the termination; OR
3. The employer and employee have agreed, either expressly or impliedly, that termination shall be for cause or limited in some other way.

It is important to consult with an experienced employment law attorney who can evaluate the circumstances and merits to your particular situation.

Is my Employer Subject to or Exempt From Wrongful Termination?

Under the Civil Rights Act, “employers” are defined as “person[s] engaged in an industry affecting commerce” with fifteen (15) or more employees for each working day in each of “twenty or more calendar weeks in the current or preceding calendar year, and any agent of such person[s].” Employees are defined as anyone who has an employment relationship with the employer. Basically, anyone who appears on the employer’s payroll.

The following are excluded from the definition of employer under the Civil Rights Act:

1. The U.S. government and its wholly owned corporations;
2. Indian Tribes;
3. Departments of the District of Columbia; and
4. Tax-exempt bona fide membership clubs. Religious entities, association, educational institutions have a limited ability to discrimination on the basis of religion in only hiring people of a particular religion to work within their organization. This has been interpreted to include termination of a person’s employment because of religious beliefs or conduct that are inconsistent with the religious organization.

It is important to note that these are examples of exemptions under only one of the many employment laws affecting California. While some entities are exempted from the Federal definition of “employer,” you should still consult with an experienced attorney who can review your situation and help you determine what courses of action may be available.

How is Wrongful Termination Determined?

Your employment law attorney will first help you determine the nature of your employment; whether you were at-will or for-cause based on the terms of your employment agreement. This requires a review of your personnel records, employment agreements, and company policies. Additionally, there may be time limitations that affect your case. There is a “statute of limitations” of two (2) years to bring a wrongful termination claim in California.

Next, your attorney will help determine whether the nature of your termination was in violation of any of the following aspects of the law:

1. anti-discrimination laws;
2. refusal to commit a criminal act;
3. an assertion of protected statutory rights;
4. performance of a statutory obligation; or
5. “whistleblowing” or reporting violations of law.

Because of the complexities and various laws that surround claims for wrongful termination, it is very important to consult with an experienced employment law attorney who can ascertain whether your termination from employment was conducted lawfully. Employment law involves an approach that investigates and analyzes your unique and particular circumstances in order to determine whether a claim for wrongful termination exists. The attorneys at David Yeremian & Associates, Inc. have the experience and knowledge to evaluate whether you have been released from you position within the letter of the law.

What Can I Recover for Wrongful Termination?

a. For-Cause Employees

Wrongful termination may fall within two aspects of law, which determine what damages and remedies are available to the wronged party; contract or tort law. If wrongful termination is found to be a violation (or, breach) of the employment agreement, generally, contract law will be applied. Contract law imposes limitations on what damages may be recovered. For example, emotional distress or punitive damages are unavailable in a case where an employer wrongfully breached the employment agreement by terminating the employee without proper justification.

Generally, a “for-cause” employee (someone with an employment agreement specifying term of employment and/or justifiable reasons for termination) may be entitled to recover ascertainable damages: the back pay and interest, the value of benefits, relocation costs, and loss of security. An experienced employment law attorney will help navigate the calculation process to determine what you may be due in the event of a wrongful breach of contract termination.

b. At-Will Employees; Discrimination Claims

Wrongful termination stemming from discrimination, whistleblower, or other violations of public policy fall under the area of law known as “torts.” A tort is a purposeful or negligent wrongful act governed by civil – not criminal – law. A wrongful termination claim may be entitled to recover two types of remedies: general or special. General damages are those that are inevitably and invariably a result of the wrongful termination: emotional distress or physical harm. Special damages are those that are unique to the harmed person’s situation: lost wages/back pay, lost health insurance and other benefits (such as retirement or pension benefits), medical expenses incurred, and loss of future wages and interest. Additionally, punitive damages may be available when termination is found to have been malicious, oppressive, or based on fraud.

How do I Know if I Have a Claim for Wrongful Termination?

Proving wrongful termination can be very challenging and difficult due to the intricacies of both State and Federal laws relating to employment and civil rights. It is important to utilize the services of an experienced and employment law attorney with the detailed knowledge and familiarity with the complex laws and rulings in cases similar to yours. Since there is no single law that defines wrongful termination, it is important to speak with the seasoned employment law attorneys at David Yeremian & Associates, Inc. to ensure that you have been released from you position within the letter of the law.