What Is Wrongful Termination?
In an at-will employment state like California, it may seem that no termination could be deemed “wrongful,” but employees are still protected by state and federal laws against illegal acts of termination, such as those based on discrimination or retaliation, or even on violations of public policy. Employees also can cite written or oral promises made by the employer about grounds for dismissal or prospects for long-term employment. California also protects workers’ rights when it comes to leave laws.
When Is It Wrong to Fire an Employee?
Wrongful termination comes into play when one of the following factors or circumstances figures into your decision to terminate an employee:
- Discrimination: Since the Civil Rights Act of 1964 and subsequent legal precedents and additional statutes, the federal government has created “protected classes” of employees who cannot be discriminated against based on their personal characteristics. These classes are based on race, sex (including pregnancy, gender identity, and sexual orientation), disability, genetic history, age, religion or religious practices, national origin, veteran status, and political affiliation. California law mirrors these protections.
- Retaliation: Retaliation implies an adverse reaction to an employee because of something he or she did, whether it be for taking protected leave, reporting acts of sexual harassment at work, participating in a government investigation of your business, or whistleblowing (reporting safety, health, or other violations to federal or state authorities).
- Violations of Public Policy: If a termination violates public policy, it is open to wrongful termination charges. This type of action often occurs when an employee refuses to commit an act that is illegal or considered socially undesirable. For instance, if an employee is fired for refusing to help the employer commit fraud, that is a violation of public policy.
- Written or Implied Promises: If an employee handbook cites certain procedures and reasons for termination, those can be considered written promises that cannot be violated. Also, if a supervisor tells an employee not to worry because “your job is safe,” that becomes an implied promise that cannot be broken.
- California Fair Employment and Housing Act: This state-specific law makes it illegal for an employer to terminate an employee who opposes harassment or discrimination, files a complaint about harassment or discrimination, or testifies or assists in an investigation or lawsuit over harassment or discrimination.
- Constructive Termination or Discharge: If an employer decides the best way to get rid of an employee is to make life miserable at work and the employee resigns, this can fall under the category of constructive termination or discharge. In other words, you forced the employee out and they had no option but to quit or feel continually persecuted.
Employer Rights in Wrongful Termination
As mentioned above, the best defense is a good offense. Make sure all of your employee documents from the application to the employee handbook emphasize that employment is at will. If you list any conditions for termination, you must stick to them. You must also ensure that neither you nor any supervisor makes implied promises of job security or long-term employment.
It is also important to note that the U.S. Supreme Court, in two cases known generically as Gross and Nassar, has set the standard that an act of discrimination must be the “because of/but for” factor in any termination lawsuit. As the court ruled, the discriminatory act must have “a determinative influence on the outcome.”
“But for” can be a defense if you document everything that went into your decision to terminate the employee. That is, you keep a record of every incident with the employee that led to the decision to terminate them, whether it be poor performance, uncooperative attitude, repeated absence from work, and so on.
You must be able to show that the employee was warned and counseled prior to the decision to terminate them. Even if you’re accused of discrimination in their firing, you can point to other contributory factors by the employee, so that discrimination is not the prime motivation.
Trust a Skilled Team of Attorneys
Facing a wrongful termination lawsuit is one of the last things you need while trying to operate a successful, smoothly functioning business. You should prepare for this possibility by ensuring you have the appropriate policies and procedures in place. Keep employees informed and in the loop, and train supervisors on conduct and decision-making that can open up your business to employee lawsuits.
If an employee does lodge a wrongful termination lawsuit against you, you should have legal representation. Your attorney can listen to the circumstances, investigate, and devise a strategy aimed at achieving the best possible outcome.