California Employment Law 101: Just the Basics (July 2018)
The most common call I field is from employees who believe they have been “wrongfully terminated.” My response? Let’s discuss.
I have a ton of empathy in these situations because I know it’s always a bad day for someone if they’ve been terminated. Our jobs go to the heart of our well-being. In part, without work, we can’t pay for those luxury items like food, shelter, electricity and family support. And, for most people, work is a community, providing a sense of self-worth, identity and belonging. So, whether or not a person’s termination or layoff actually meets the legal definition of “wrongful,” Machen Law will walk callers through it, whether that takes 5 minutes or 30 minutes. Too often, I have to end the conversation by declining the client and by explaining that the law has no cause of action against an employer for simply being an a***h***.
California is an “at-will” employment state. That means that, without that rare contract engaging a person’s services for a period of time and agreeing that separation will only be “for cause,” as defined in that contract, a company can terminate a worker for almost any reason. Beware of those personality clashes with the new manager; and, there’s often no recourse if the new manager came in wanting to hire his or her own team of previous associates, which meant removing another person presently in the job.
However, there are exceptions to the rule, notably termination with discriminatory intent; and, whistleblowing or other retaliatory act for asserting a protected right, such as the right for eligible workers to take family medical leave or the right to a disability accommodation.
Discrimination.California law provides broad protections that make it unlawful to discriminate against a person in hiring and firing decisions based on the following: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person. Just belonging to a protected class and suffering an adverse employment action is not enough to mount a claim for discrimination. A person would also have to show a nexus between their belonging to a protected class and the action that was taken against them. If the employer has a legitimate reason for taking the adverse action, the burden of proof is on the employee to show that the so-called legitimate reason is just a pretext.
Whistleblower retaliation. As well, state public policy seeks to protect that brave individual who has a front row seat to illegality in the workplace, whether a violation of statute or regulatory rule, and who reports it either to a government oversight agency or to a supervisor who is in a position to stop the illegality. A strong example: when an employee is just trying to make the workplace safer, whether for consumers or for people who work there. When termination or other adverse action happens soon after an employee reports a violation, the law presumes a causal connection.
Retaliation for assertion of a legally protected right. Similar to whistleblower retaliation, when an employee asserts a legally protected right and suffers an adverse employment action soon thereafter, the law presumes there is a connection. A few years ago, the California legislature clarified that a claim of retaliation can exist for employees terminated for taking a protected leave of absence from work.
Evidence. I joke that I always believe a client’s story – but, in seriousness, I have to question whether or not they can prove it. For instance, as noted above, showing discriminatory intent can often be tricky. A client’s story may be persuasive supported with circumstantial evidence such as a favorable timeline. But, even more persuasive is corroborating evidence, particularly documents and witnesses. It’s a happy day when a new client is the type of person who saves every email and documented every occurrence; and, that same client’s co-workers can back up their story.
If a potential client has a compelling story supported by some actual evidence and a legal theory, Machen Law will usually offer to represent them. If not, there is at least one consolation prize: Sometimes, even pointing a recently terminated employee in the direction of unemployment insurance can aid the transition to a new job. Usually, the employee is eligible for unemployment because they had no advance warning or reason to believe that they would lose their job – and, that is just the kind of safety net that unemployment insurance provides.