Wrongful termination is a discharge of a worker for an illegal reason. Even at-will employees are protected by state and federal wrongful termination laws.
You can determine if you have been wrongfully terminated by reviewing the primary grounds for wrongful termination claims discussed below.
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A. Harassment and Discrimination
California’s Fair Employment and Housing Act (“FEHA”) makes it illegal for employers to fire workers based on their being part of a protected class. Protected classes are:
- National origin or citizenship status
- Sex or gender identity
- Sexual orientation
- Disability or medical condition
- Genetic information
- Pregnancy, pumping breast milk at work, or for asking for lactation accommodation
- Age (if over 40)
- Being a victim of domestic violence, assault or stalking
- Marital status
- AIDS/HIV positive status
- Political activities or affiliations
- Military or veteran status
- In some cities such as San Francisco, height and weight
California employers also may not fire employees for joining a labor union or participating in union activities or for engaging in lawful conduct outside of work.
Another common type of wrongful termination claim is retaliation. Retaliation is when an employer takes an adverse action against an employee for engaging in a protected activity.
Protected activities include:
Complaining about or reporting:
o Discrimination (against yourself or another person)
o Sexual harassment
o Failure to accommodate a disability or religious belief o Labor Code violations (e.g. missed meal and rest breaks or unpaid overtime)
o Violations of federal, state or local laws, rules or regulations (e.g. OSHA
- Taking leave under the Family Medical Leave Act (“FMLA”) or California Family
- Rights Act (“CFRA”)
- Using sick time
- Filing a workers’ compensation claim
If an employer takes an adverse employment action against an employee for any of the protected activities listed above, the employee may have a claim for retaliation. Adverse employment actions may include termination, demotion, suspension, reduction in pay or hours, refusal to hire or promote, immigration related threats, and other adverse employment actions.
C. Mass Layoff with Insufficient Notice
Another type of wrongful termination is the failure of an employer to comply with California’s Worker Retraining and Notification (“WARN”) Act.
California’s WARN Act requires employers to provide employees with sixty (60) days’ notice before conducting a mass layoff of fifty (50) or more employees, or before closing or relocating a facility.
The law applies to all employers with at least seventy-five (75) employees.
If the employer fails to provide 60-days’ notice, it may be liable for penalties, and wages and benefits owed to employees for the amount of time by which the notice fell short of 60 days.
D. Violation of Implied ContractAn “implied contract” is an agreement that is understood by both parties, even if they have not memorialized their agreement in a written contract. An employer may create an implied contract not to terminate an employee without good cause by:
- issuing an employee handbook listing specific reasons why employees may be fired, and/or
- telling an employee that the employee’s job is safe as long as the employee does not do certain things in violation of company policy.
Employers violate the implied covenant of good faith and fair dealing by interference, evasiveness, inaction, non-communication, obstruction, or deliberate lies, fraud, and misrepresentation
If you believe that you have been wrongfully terminated, there are some steps you can take to protect your rights and get the compensation you deserve.
The first step is to contact the attorneys at MSD LLP. Our experienced attorneys will be able to review the circumstances of your case and determine if you have a valid claim. If you do have a claim, your attorney will work with you to gather evidence and build a strong case.
In addition to working with MSD LLP, there are some things you can do on your own to help strengthen your case. First, keep good records of everything that happened leading up to and including your termination. This may include emails, performance reviews, and any other documentation that may be relevant. Additionally, it is important to keep a record of any financial losses you incurred as a result of your termination. This may include lost wages, medical expenses, and/or the cost of relocating for a new job.
Damages You May Be Able to Recover
A. Lost wages and benefits plus interest. These damages are the pay that you could reasonably have expected to earn had you not been wrongfully terminated, plus the value of any employee benefits. This includes healthcare benefits, unused vacation, etc. This amount of unpaid wages will be reduced (“mitigated”), however, by the wages and benefits that you actually earned, or could have earned, from substantially similar employment.
B. Job reinstatement. You may also be granted the same level of seniority you had at the time of the unlawful discharge. Though in reality, most people do not want their job back following a contentious legal proceeding and would rather look for a new job.
C. Loss of future wages/front pay. The court calculates this by starting on the day of a successful verdict after trial through the projected end date of the job, generally a few years out.
D. Emotional distress/pain and suffering. This can include compensation for physical pain, mental suffering, loss of enjoyment of life, grief, anxiety, loss of professional reputation, or humiliation arising from the traumatic experience of losing the job unfairly.
E. Attorney’s fees and litigation costs. In many cases, such as under FEHA or for
retaliation claims, successful plaintiffs can collect attorney’s fees from the employer-
F. Punitive damages. These are designed to punish the employer for its behavior and do not need to be related to any economic or non-economic loss you suffered. Punitive damages are only awarded in cases where the employer is found to be guilty of oppression, fraud or malice. They are more common in discrimination and harassment cases.
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