Wrongful Termination Law is Bigger than the “At Will” Doctrine
“They can do anything they want, right? I mean, it’s an ‘at-will’ employment state.”
I’ve heard this statement over the years from prospective clients, and when I do, I take a deep breath. Behind the statement is the work of corporations with human resource specialists and employment defense attorneys who have used a sort of propaganda: they drill “at will” into their training and policies, but fail to address the overwhelming number of major exceptions that virtually consume the at-will doctrine. My job is to protect my clients’ employment rights by asserting the exceptions.
The term “wrongful termination” encompasses a constellation of rights ranging from wage laws and working conditions, to anti-discrimination and anti-retaliation laws. There is considerable overlap of federal and state laws on the same subjects. State law can and does increase the protections of the federal minimum standards, but state law cannot decrease those basic protections. The extent and complexity of these “exceptions” are why I stay in business. California law is markedly favorable to the employee compared to many other states.
Wrongful Termination Laws Include Whistleblower Protections.
When considering “wrongful termination” questions, keep in mind that for every protection there is usually an anti-retaliation law that prohibits an employer from firing an employee for asserting the protection. Often, the ability to prove the retaliation is easier than proving the merits of the original complaint. For example, if you witness behavior you believe to be sexually harassing, and you report it to Human Resources, and a short time later you are inexplicably fired, the proof of retaliation for reporting does not require that you were correct about the harassment, but only that you reasonably believed harassment occurred. Employees have banded together to push back against retaliation, and organizations have formed to offer support. See, for example The National Whistleblower Center.
Wrongful Termination Laws Include Protection Against Discrimination and Harassment.
Consider too that harassment can take many forms, not all of them as clear as a physical assault or battery. Exclusion from key meetings and information, adding or removing workload, applying double standards for attendance or deadlines, withdrawing support and increasing criticisms, setting impossible performance expectations, and spreading gossip and defamatory communications are all evidence of harassment. Sometimes the harassment becomes so severe that no reasonable employee can or would continue his or her employment. If the employer is on notice of these conditions, and takes no corrective action, the employee may be allowed to quit, and treat the resignation as a “constructive termination.” This phrase means the quitting is the equivalent of an illegal firing.
The key in discrimination cases is to connect the termination, demotion, transfer, cut in pay or benefits, or harassment to your race, national origin, age, gender, ancestry, religion, medical leave use, disability, pregnancy, sexual orientation, gender identity or expression, genetic information, political affiliation, or military and veteran status, marital status or HIV status, or even whether you are victim of domestic violence. As you see, the list is long, and hopefully you’re ready to conclude the ‘at will’ rule is not what employers want you to believe.
The key in retaliation cases is to meet all the basic elements of proof. In California, the courts have made that much easier over the years. For example, “blowing the whistle” can be proven that you made a verbal protest against an employer practice you believed to be illegal. Here are some important points in the proof of a “whistleblower” case in California: you may be technically wrong that the employer behavior is illegal. The relevant question is whether you were reasonable in your belief. You do not have to have direct evidence that your complaint caused the firing. Employees seldom do. The short time between complaint and firing is sufficient evidence of “causation.” You do not even have to make an explicit communication of your resistance to the illegal conduct. Your passive refusal to cooperate in the conduct is sufficient. Courts have also held that if you are viewed by the employer as associated with a co-employee whistleblower, and suspects you encouraged the whistleblower, or that you may in the future blow the whistle, and fires you based on that suspicion, you have been wrongfully terminated.
Wrongful Termination Law Captures a Long List of Statutory Protections.
The list of rights that can form the basis for “wrongful termination” is long. The list includes:
- Family and medical leave rights
- Pregnancy Disability and Pregnancy Accommodation rights
- Military spouse leave
- Leave to participate in your child’s school or daycare activities
- Domestic Violence Leave.
- Bone marrow and organ donor leave
- Alcohol and drug rehabilitation leave
- Non-retaliation for reporting work safety violations
- Non-retaliation for reporting discrimination and harassment
- Non-retaliation for making a workers’ compensation claim
- Non-retaliation for pursuing private activities during off-site, off-duty hours
- Non-retaliation for disclosing wage earning rates to co-employees
- Equal pay: California is likely to have a “beefed up” Equal Pay Act that eases the recovery of equal pay by women, and allows greater freedom for employees to disclose to one another disparities in pay.
- Voting leave
- Jury Duty
- Military leave with right of reinstatement, including National Guard training.
- Meal and Rest breaks
- Minimum wage and overtime rates
- A host of California Labor Code requirements for “working conditions” including paystub information and the use of sitting stools for retail checkout clerks, for example.
The point of this list is that it accords employees a two-pronged set of remedies: the specific statutory protection and a common law protection against wrongful termination because an employee asserts the statutory right. California agencies offer assistance in pursuing your rights against discrimination [Department of Fair Employment and Housing] and wage [Labor Code] violations [CA Dept. of Labor Standards Enforcement (Labor Commissioner)].
Wrongful Termination Laws Provide Compensation for Damages.
“Damages” refers to money compensation for wrongful termination of employment. The damages include wage loss, emotional injury, punitive damages, and in some cases, the recovery of attorney’s fees and litigation costs. It is usual for wrongful termination verdicts to be between $250,000 and $2,000,000.00. The reasons are multiple, but some of the reasons include the work life of the employee, and the anticipated partial wage / benefit losses over that time, the trauma of unemployment, including the associated depression and anxiety, especially if unemployment is protracted; the degree of evil behind the termination decision [affecting punitive damages], and the good character and work record of the employee as the employee counters the bogus reasons the employer may raise to justify the termination.
This article presents only an overview of wrongful termination law. The reason you may require legal counsel is the nuances of the proof required in particular cases. Wrongful termination law is one of the most fluid and evolving of practices. Every week, I read a dozen or more cases that further refine, expand, or constrict the scope of legal protections. That is one reason I enjoy the practice, and have stayed with it for nearly 25 years.