Wrongful Termination

In California, generally speaking, most employees are "at-will" employees.  They can decide to quit their job at any time, for any reason, or for no reason. Likewise, the employer can also decide to let an employee go for any reason, or for no reason, without liability.  This employer – employee relationship is outlined in the California Labor Code as follows:

"An employment, having no specified term, may be terminated at the will of either party on notice to the other….” (California Labor Code § 2922)  Terminations along these lines are not illegal. 

I receive a lot of questions from employees asking about termination of at will employees.  What is Wrongful termination?  What is wrongful firing?  What is unfair termination?  What is a wrongful discharge?  Was I subject to an illegal firing?  In California there are exceptions to the lawful termination of an at will employee.  This article will outline what you need to know to protect yourself.  

Good Cause Required  - Some employees have employment contracts or agreements not to terminate except for "good cause."   This type of agreement can be written, oral, or implied.  An oral agreement could consist of a simple statement from your boss such as "You will not be fired as long as you continue to do a good job."  Similarly if an employer has policies that require progressive discipline it may suggest cause is required prior to termination. 

Some employees have written employment contracts.  These days most written employment contracts are reserved for “upper management,” however all union employees are covered by a written agreement, a collective bargaining agreement.  Many collective bargaining agreements have limitations on arbitrary terminations.  The employee or their attorney will need to review the terms of the collective bargaining agreement to determine his or her rights, and the administrative procedures that must be followed to make a claim. 

Protected Category - The California Fair Employment and Housing Act ("FEHA") provides that even an at-will employee cannot be terminated if the termination is based upon a protected characteristic.  Under the FEHA no termination or demotion can be based upon an employee’s age (over 40), gender, race, religion, national origin, sexual orientation, or sexual identity.

Importantly these protections apply to an employee who complains of discrimination based on a protected characteristic or participates in an investigation of discrimination based on a protected characteristic.  It is illegal for an employer to retaliate against an employee who engages in these types of protected activities.  Essentially no employee can be terminated in retaliation for asserting a right protected by the Fair Employment and Housing Act.  If you have a questions about your rights under the FEHA call Gienapp Law, APC for a free consultation (619) 234-3054. 

Termination in violation of public policy -   An employer cannot fire an employee for any reason against public policy.  The most common example is when an employee is fired for complaining about illegal or unsafe conduct in the workplace.  An employee may complaint to their employer or to an outside agency.  If the employee is fired as a direct result of these complaints, the termination may be illegal. 

Participation in a protected activity - There are a number of activities or actions that can be taken by an employee for which they cannot be terminated. This includes filing a workers compensation claim, jury duty, volunteer firefighting, taking time off for a child's school activities, taking time off to care for your own illness or that of a close family member, not disclosing wages, not patronizing the employer, participating in alcohol or drug rehabilitation, political activities, disclosing information to a government or law enforcement agency when the employee reasonably believes that a law has been violated, military service, and refusing to disclose medical information. This is not a complete list.  If you have been terminated and you believe in may be in retaliation for engaging in a protected activity call Gienapp Law,APC for a free consultation (619) 234–3054.


Complain Complain Complain -   The biggest mistake I see when talking to employees is that the employee was afraid to complain to their supervisor, manager, the owner, or Human Resources about the treatment or behavior over which the employee is concerned.   The best way for an employee to protect himself or herself is to complain to their employer about the treatment or behavior.  In many cases, the act of complaining is a protected activity for which no retaliation is legal, even if the treatment or behavior complained of is found to be perfectly legal. As long as the employee has a good faith belief that the treatment or behavior is illegal, the act of complaining is protected.    Informing your employer of your concerns is hands down the single most important way to protect yourself.   If you have questions about a complaint to your employer please call Gienapp Law, APC (619) 234-3054 for a free consultation.  

The first step in protecting your rights is to become informed.  Call Gienapp Law, APC (619) 234-3054 for a free consultation concerning your employment rights.  Be an informed employee.