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"Termination in Violation of Public Policy"

Another Exception to "At Will" Employment: "Termination in Violation of Public Policy"

  • Four elements of the "cause of action" are most often focus of effort to "make the case":
    • That the employee complained of (or resisted) an illegal employer directive or action
    • That the employer was motivated to terminate the employment because of the complaint or protest
    • That the employee actually suffered some sort of significant employment harm ("an adverse employment action")
    • That the subject of the complaint was substantially important to society, not just the employee and employer
  • A recent case shows Courts are willing to let these cases be tried on slim evidence: Yanowitz v. L'Oreal (CA Supreme Court, 2005)
  • So, my clients often ask me, "How can I ever prove that?"
    • Courts understand that bad actors don't speak all their lines (or admit their intentions)
    • Court will allow proof by circumstantial evidence that indirectly points to a retaliatory motive

What Can You Do to Protect Yourself from a Retaliatory Firing?

  • If you complain, make your complaint in writing, even though the courts don't require written complaints.
  • Don't complain about trivial matters: the Courts only provide protection if your complaint is of "fundamental social importance".
  • Don't wait to make the complaint known to upper management. A supervisor will fire you before you expose him to his superiors.
  • Check your own motives: are you sincerely concerned on ethical and legal grounds that the employer's directive is wrong?
  • Follow the internal employer policy to report a manager's bad faith behavior.
    • If internal redress not obtained, the Company will be liable for emotional and punitive damages for not responding
    • By reporting, you clearly communicate the complaint, and therefore you give weight to a charge of "retaliation" if it occurs.
    • If retaliation takes the form of harassment, report it, and make clear that you may be forced to quit if no action is taken to stop it.
  • Refuse to sign warnings or evaluations stating false information unless you write "signed under protest" before your signature.
  • If co-employees are willing, have them sign a simple statement of what they actually hear or see that could be used in litigation.
  • Keep copies of emails that directly prove a "bad faith" purpose and intent, such as an admission of discriminatory intent or retaliation.
  • Use an employee rights attorney proactively for counsel and guidance before you are terminated or disciplined.

Employee Rights Attorney Frank Pray

5160 Campus Drive

Newport Beach CA 92660

949.251.1006

877.job.atty


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