In California, this doctrine has been widely expanded by courts and provided employees extra protections that are far too numerous to detail here. In a very narrow "nutshell," some general things which suggest a termination might be wrongful include:

1. You were terminated for refusing to do something illegal;
2. You were terminated for doing something California or federal law gives you the right to do;
3. You were terminated for complaining about something at work;
4. You were terminated for complaining to a third party about your employer;
5. You were terminated for reasons that just do not "feel" right; or
6. The reasons you were given for your termination just do not make any sense and seems to be a "cover up" for another reason.

If you believe you have been wrongfully terminated, we invite you to contact us today for a free consultation to discuss this and any other employment law questions you might have.

Our employee rights attorneys practice employment law and only represent employees not employers and we are committed to enforcing your rights as an employee. We also offer competitive fees, including contingency fee arrangements in most cases.

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Although the video was more of a parody based on observations about iPhones and those who buy them, Best Buy understandably did not take kindly to an employee publicly criticizing one of its major customers (and also those who shop at Best Buy).

The employee was suspended during the investigation and it seemed to be just a matter of time before he was terminated, but Best Buy quickly withered under the harsh public backlash from the “geek” community and the company back-pedaled, citing their desire to promote a “supportive environment” for its employees as motivating their decision.

Best Buy publicly offered the employee his job back via a press-release, but he actually released a statement of his own essentially telling them he did not want his job back after being treated the way he was by Best Buy.

I am going to take the rare step of siding with the employer on this one.  The video the employee created (which I admit as an Android user I found uproariously funny) was watched by millions and at least briefly affected some of the public’s views on Apple, the iPhone and Best Buy.  I have to assume that Best Buy is one of the largest distributors of iPhones besides Apple directly and AT&T, so this employee’s actions caused the company at the very least a great deal of embarrassment.

After reading some of the informal commentary on the internet about this story (e.g. “He should sue them!”), I will offer up the following advice on the implications of California Employment law:  contrary to popular belief, the First Amendment has nothing to do with this case and only protects citizens from government action.  Except in limited circumstances that do not seem to apply to this situation, employers are free to terminate an employee for anything they post on the internet that is critical of them or their affiliates.

In sum, if you would not say it to your boss’s face, don’t post it on the internet where he can see it because he is free to respond as if you had.

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Most past legislation along these lines has tried to either require English-only in places of employment or allowed employers to require their employees to speak English.  Conservative California legislators made a half-hearted attempt at passing such a law a few years ago without gaining much traction.

As we have pointed out in the past, such laws are invalid because they violate Title VII of the 1964 Civil Rights Act, which specifically prohibits such policies unless there is an actual “business necessity” for them.  For example, a nurse could be required to speak only English to a doctor during surgery.  However, upon further examination I discovered that the Tennessee bill does not even try to defy federal law.

The Tennessee bill is an example of the worst kind of law:  one that has no valid purpose except to pick on a minority group.  All the law does is restate the Title VII language that allows such a policy only where there is a “business or safe workplace necessity” for it.

The law waters down its language even further by stating that an employer cannot require English-only when an employee is on a break or talking to co-workers.  Essentially, the law can be re-stated as follows:  “Employers can require an employee to speak English, but only if it is necessary for them to do so”.

In short, all the Tennessee law does is restate federal law, but in a deceptive way.  Instead of saying that English-only policies are illegal except where justified by business necessity, it purports to give employers permission (or even encourage them) to create such policies if necessary, which likely is not a problem to begin with and employers are already free to do under federal law.

All states in this country are in the middle of a fiscal crisis that is putting their legislatures’ budgetary skills to the test.  There are not enough hours in the day for most of them to come up with solutions to their states’ most pressing problems.  However, Tennessee’s legislature apparently decided that writing and passing a law that has no legal affect on anyone whatsoever, but instead tries to ostracize those who either do not speak English or have difficulty doing so.  That is just mean.

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We often attend unemployment appeal hearings on behalf of clients because they are also pursuing wrongful termination claims against their former employers.  This is both as a precautionary measure and a chance to obtain vital information at the outset of a case.

These hearings are conducted in front of an administrative law judge and under oath, so anything either side says can be used against them in later litigation.  If you think that your termination was illegal and that you might pursue claims against the company, I urge you to contact an attorney as soon as possible before the hearing.

If you testify at an unemployment appeal hearing without being prepared you could cause severe damage to your claims without even knowing it.  On the other hand, giving your attorney a chance to question the people who terminated your employment under oath without an attorney there to advise them is a tremendous opportunity.

I only started noticing companies like those mentioned in the NYT story in the last five years or so, but it is true that I have run into them more and more since the start of the country’s economic downturn.  The most disturbing aspect of these companies is that they seem to contest every single claim filed against an employer, knowing that some employees simply will not appeal a denial of their claim or will not show up at the hearing to fight the employer’s appeal.

Whenever I see a case where an employer contests an unemployment claim without any reasonable basis for doing so, there is almost always one of these companies on the other side pulling the strings.

However, one interesting thing I have noticed is that these companies almost never attend the appeals hearing if they find out the claimant has a lawyer.  To me this suggests that they do not even look at the merits of an unemployment claim unless they absolutely have to, which is a  terrible thing to do to a former employee.

In some counties, these appeals do not go to a hearing until months after the paperwork is filed.   Forcing an employee to go through a meritless appeal of their unemployment is a serious disruption in their life.  Instead of focusing on finding a new job, they have to worry about whether they will not only lose their benefits, but also have to pay back the unemployment they have already received.

Many states have passed laws that curtail some of the abuses these companies engage in, but California has yet to pass such a law.  Until then, employees should be vigilant in fighting for their unemployment and should not be intimidated if their employer tries to contest their claim.

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California Employment Law | Unemployment | Wrongful Termination

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I think part of this might be attributable to a common employment law misconception among employees, which is that they somehow have less rights if they are "laid off" than if they had been "terminated".  The only real difference, though, is that when someone is being laid off it usually means several employees are being terminated at the same time.

In wrongful termination cases this does give the employer a bit of an advantage in mounting a defense by pointing out that the employee in question was not singled out but instead terminated as part of a "restructuring" or "downsizing" along with several others.

However, someone still has to decide who to layoff and if that person has biases against older workers, working mothers, employees with disabilities, etc. that can often show through in trends after examining the characteristics of who was let go versus who was kept.

Personal vendettas can also come into play by supervisors who, for example, may not like how one of their employees complains about working long hours without overtime pay and on that basis alone selects them for layoff.

The most important thing a laid-off employee can do to protect their employment law rights is to objectively look at the situation and consider whether it makes sense that they were laid off, but their peers were kept.  For example, who has the most seniority?  Where do they rank in sales performance?  Are their performance reviews better or worse than the others?

The next step is to consider whether there is any illegal reason the decision maker (or someone with their ear) would want them to be terminated instead of another, less-qualified employee.  If there is such a reason and it makes more sense than simply selecting them as the most logical person to be laid off, the employee might want to contact an employee rights attorney to run the situation by them.

The best barometer I have found in employment law cases is that if the employee can look at the situation objectively and feels in their "gut" that something is "fishy," that usually ends up being the case when we start digging deeper.

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Questions include topics such as whether the contestant has cheated on their spouse, wishes to cheat on their spouse, has various addictions and other very personal areas.

I have no idea who would volunteer to go on this show, especially after knowing the questions in advance. If you know that you could be about to reveal on national television that you cheated on your spouse, why would you go through with it?

Employment Law Issues

I want to clarify that I myself have never actually seen the show, because the ads alone made me cringe. However, an article yesterday on CNNMoney.com questioned the employment law implications for those who go on the show and may be disciplined at work for what is revealed.

Past questions have included whether a personal trainer ever touches female clients more than necessary. He answered "no," but apparently the lie detector revealed that the true answer was "yes". On the same episode, a contestant admitted to looking through their co-workers' desks.

CNN Got Bad Legal Advice

Unfortunately for the author of the CNN article, the attorneys he spoke to gave extremely bad legal advice when asked whether employers could legally discipline these employees based on the show.

The responses from the lawyers included that the information would be "fair game" for discipline and that "It would be neither illegal nor unfair" to do so.

However, these answers are just plain wrong. The Employee Polygraph Protection Act (29 USC 2001-2009) specifically makes it illegal to:

discharge, discipline, discriminate against in any manner, or deny employment or promotion to, or threaten to take such action against...any employee or prospective employee on the basis of the results of any lie detector test."

There is no requirement that the employer itself administer the test and any employer who violates this law is liable to the employee for lost wages, benefits, costs, attorney's fees, and a $10,000 civil penalty.

It Could Happen

It is not unprecedented for an employee to be terminated from a job for what they say or do on a TV show. For example, on the second season of The Apprentice, one of the candidates was terminated (from her "real life" job, not by Trump) for describing some elderly women as "two old Jewish ladies".

If an employee is "caught" in a lie on Moment of Truth and the employer terminates the employee for it, then it would be a clear violation of the prohibition of adverse action "on the basis of the results of any lie detector test".

Should it be legal to terminate an employee for essentially admitting on national TV that he likes to touch his female clients a little too much? Probably.

Is it legal? No.

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In this case, the employee was refused employment because his pre-employment drug test came back positive for marijuana. The employee had been using medical marijuana at the direction of his physician to deal with lower back strain and muscle spasms.

Case Background

Under California's Compassionate Use Act, patients cannot be prosecuted under state law for using or possessing medical marijuana.

However, while federal authorities do not usually pursue prosecution against those who simply use marijuana and do not sell it, the federal Controlled Substances Act still makes possession of marijuana illegal.

California's Fair Employment and Housing Act ("FEHA") makes it illegal for an employer to terminate an employee as a result of their disability or to fail to "reasonably accommodate" their disability.

The collision of these three laws is messy and the answer as to which should prevail is very unclear.

Criminal Law Meets Employment Law

The Supreme Court now has to interpret the FEHA while considering the two drug laws as a backdrop.

To simplify the discrimination issues in terms of a "normal" disability discrimination case, just substitute the word "Vicodin" for "marijuana". Generally, an employer could not terminate an employee for using Vicodin in connection with their disability.

Under these facts, the employee would have a fairly sound disability discrimination case under California law. However, the fact that marijuana use or possession is illegal under federal law complicates things considerably.

Employment Law Meets Criminal Law

For the Court to hold in Ross' favor, they would essentially prohibit employers from terminating employees for engaging in what is essentially criminal conduct.

The FEHA does not really address whether employers must allow employees to engage in illegal conduct outside of work as part of a "reasonable accommodation" for a disability.

Basically, the law is silent on this issue, but this analysis could turn on the word "reasonable". Is allowing an employee to break the law at home on their own time reasonable?

I do not pretend to know the answer to that question.

My Opinion

If I was deciding this case, I would say that the question of legality or illegality on the part of the employee does not enter into the analysis for the purposes of FEHA liability. Illegality should only be considered if it affects the employer.

It is important to note that Ross only used the marijuana at home and did not bring it to or use it at work. As long as the employee does not use the medical marijuana during work hours, I think it is no concern of the employer. I bring this caveat up because if they were to use at work, the employer would essentially be helping the employee commit a crime if they provide a place or time to use it.

I also think that employers would not have to allow the employee to work if they are under the influence at work and doing tasks that would make them dangerous to themselves or others.

Many of the opponents to Ross point to this as a major issue. How can an employer know if the employee has recently used and is safe to have at work? However, I think this is a red herring, because this would also be a problem where an employee has to use Vicodin, which arguably can impair function much more than marijuana does.

The Court's Opinion

Of course, my opinion does not matter much. What really matters here is what the California Supreme Court thinks.

Based on the transcripts from the arguments yesterday, it roughly seems to be a 3-3 tie among the justices present in deciding the case.

In a dramatic twist, Justice Carol Corrigan was out with the flu and could not attend oral arguments. She will be watching a videotape of the arguments to help her decide, but we have no way of guessing what she thinks of the case.

The Court has 90 days to issue a ruling. It should be very interesting reading.

What do you think? Let us know in the comments below...

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California Employment Law | Cases | Disability Discrimination | Discrimination | Drug Testing | Policy : Opinion | Privacy | Reasonable Accommodation | Wrongful Termination

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The Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA") requires employers to provide employees with up to five years of leave to serve in the military.

When an employee returns from military service, their employer must return them to their old position at the same rate of pay without any loss of seniority or benefits based on seniority, such as raises and vacation pay.

These protections still apply even if the employee has been replaced. If the employee's position no longer exists, the employer usually must give them an equivalent position.

Additionally, an employee who returns from military leave cannot be terminated without cause for 180 days following their return. This is by far the strongest job protection provided by any federal or state employment law.

Of course, the real reason for this law is to tell recruits that their jobs will be protected if they need to take a military leave. However, if the Democratic Congress succeeds in pulling our troops out of Iraq sometime in the near future, the real effect of these protections will come into play as thousands of troops reenter the workforce.

As these employees begin returning to work and employers have to deal with accommodating them, some will simply ignore the law and hope the employee does not sue them. If you know someone who is returning from military duty, make sure they know their rights.

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California Employment Law | Discrimination | Military Discrimination | Wrongful Termination

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--Unemployed (CA)

A: It is a common misconception among employees that employers cannot terminate them if they are on a medical leave. While in practice most employer are reluctant to terminate an employee who is out on a medical leave, the law does not explicitly prohibit terminating such an employee.

The Family Medical Leave Act ("FMLA") and its California counterpart, the California Family Rights Act ("CFRA"), protect employees from being terminated because they take a medical leave. It does not totally prohibit termination of an employee while they are on a medical leave. The difference is subtle, but it is there.

For example, assume a salesperson is out on FMLA leave and his company lays off their entire 100-person sales force. The employer is not required to keep the salesperson on medical leave on their payroll and terminating the salesperson would not be an outright violation of the FMLA.

However, if the salesperson is the only one out of the 100 salespeople to be laid off and there is no other clear reason for the termination, it begins to look more like the employee is being laid off because they are on an FMLA leave.

So, in response to your question, what really matters is why you were terminated while out on a medical leave, not just that you happened to be out on a medical leave when you were terminated.

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I have heard from some other employees that I was really only hired to do one important project in my area of expertise (which we had just finished two weeks ago) and that they believe it was the company's intention to fire me all along after it was completed. Can I sue them?

--Stranded in California

A: I am truly sorry about what has happened to you and your family, but luckily you moved to a state with specific laws against this sort of thing.

Labor Code § 970

California Labor Code § 970 prohibits employers from "fraudulently inducing" employees to relocate to accept new employment. In this situation, "fraudulent inducement" essentially means lying to someone to get them to move and accept employment with your company.

If you can prove that you were lead to believe you were not being hired for one specific assignment, that your employer knew you believed that and that your employer's intention was to terminate you after that assignment was completed, then you will be able to sue your former employer.

Proof Can Be Easy in These Cases

In your situation, however, most judges and juries would easily believe you did not uproot your family and move to California just to take a six month temporary position. They also would be unlikely to believe the employer thought you agreed to that as the deal. The only thing left to prove is what the company thought would happen after the project was finished. This can be proven through e-mails, testimony and various other ways.

Damages are Tripled

Under Labor Code § 970, you can recover virtually any damages you can attribute to moving to take the new job and then being laid off. Your lost wages during unemployment, the cost of moving to California, the cost of moving back to Wisconsin if you move back, any costs you or your wife incur to get a new job, attorney's fees, and countless other damages are recoverable under this statute.

The best part of Labor Code § 970, though, is that you are entitled to recover "treble" damages. What this means is that whatever damages you are awarded get tripled as a penalty against the company. So, if you can recover $100,000 of damages for what the company did, you would be awarded $300,000 total.

The California legislature realized what an extreme hardship situations like these place on employees and their families. Often they find themselves having moved for a job that suddenly vanishes and they are left stranded.

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--Want to Help But Scared (CA)

A: Both state and federal discrimination laws prohibit retaliation by employers against employees for participating in an investigation or prosecution of an employment discrimination or harassment case.

Investigation Outcome Irrelevant

Even if it turns out that the employee who complains about discrimination was not discriminated against, or even if that employee turns out to be lying, you are still protected from retaliation.

The law protects the act of speaking up for someone else, which is evaluated independently of the underlying discrimination claim.

Retaliation Can Be Subtle

This year's landmark Supreme Court case of Burlington Northern v. White, 126 S.Ct. 2405 (2006), clarified and strengthened protections for employees against retaliation in discrimination cases.

The Court decided that any actions by an employer that would "dissuade" a "reasonable employee" from making or supporting a discrimination complaint is illegal retaliation and proper grounds for that employee to sue.

What this boils down to is that if you are retaliated against and in hindsight you would not have participated in the investigation if you had known what your employer would later do to you for it, then those actions are likely illegal.

Co-Worker Assistance is Crucial

One of the major motivations for the Court in the Burlington case was the strong public policy in this country to encourage those employees who witness discrimination against others to speak up and testify if needed.

It is important for these witnesses to feel comfortable testifying against their employers on other employees' behalf if there was wrongdoing.

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-- A Woman Wronged (CA)

A: You are in luck. In California it is illegal under Labor Code § 232.5 to retaliate against an employee for complaining about "working conditions".

Unfortunately, the term "working conditions" has not been clearly defined by California Courts under this statute. For example, if an employee complains about the poor selection in the break room's vending machine and is terminated for the complaint, the language of the statute suggests that this would be illegal.

I actually believe that this example would be illegal. However, the employee would have to prove that their employer actually terminated them for complaining about the vending machine. The less believable it is that an employer would terminate an employee for a complaint, the less likely a judge or jury would be to decide the complaint actually triggered the termination.

However, your situation is almost certainly covered by the statute. If your complaint about how your boss treated you is really what motivated her to terminate you, then you would likely be able to pursue a wrongful termination case against your former employer.

Under such a claim you might be able to recover all of your lost wages, attorney's fees and certain penalties.

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--Pregnant and Unemployed (CA)

A: As you probably know, it is illegal under both federal and California law for an employer to terminate an employee because she becomes pregnant.

Pregnancy Discrimination Claims

Pregnancy discrimination is actually a form of gender discrimination. The rationale is that only women can become pregnant, so discriminating against a woman for being pregnant is essentially discriminating against her for being a woman.

Medical Leave Claims

Your situation also constitutes discrimination under the California Family Rights Act and other medical leave laws. If you are terminated because your employer anticipates you will be taking time off that is protected by the law, it is basically the same as if you were terminated for taking that leave after the fact.

Pregnancy Discrimination Claims More Successful

A recent survey showed that pregnancy discrimination cases seem to have a higher success rate than other employment discrimination claims. I believe this is the result of a few related factors.

First, an employee can point to a specific date when their employer found out they were pregnant and if the employer terminates or otherwise discriminates against the employee a short time later, it is clear that pregnancy was the reason.

Second, it just "makes sense" that an employer would tend to discriminate against pregnant employees. In California an employee can take up to four months of protected leave for the birth of a child. The employer essentially gets a few months notice that an employee will definitely be taking such a leave in the near future. It is only human for a manager to decide that things might go more smoothly if the pregnant employee was replaced.

This, of course, does not make it right.

Damages in These Cases are Sobering for Employers

When the inconvenience of employing a pregnant woman is compared to the potential damages a company might be forced to pay her later if she successfully sues them, it should be all to clear to them that not terminating her is much cheaper than terminating her.

This is especially true for employers in California, where they can be forced to pay an employee her lost wages, attorney's fees, and virtually unlimited emotional distress and punitive damages.

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--Unhappy New Year (CA)

A: I am sorry that this happened to you. Unfortunately, this is more common than most people think, but usually it is not so blatant. Often when managers start looking at their budgets at the end of the year and want to "trim the fat", they do this sort of thing to quickly save some cash at the expense of their employees.

You promised your employer you (1) would perform at a certain level during 2006 and (2) be employed on January 1, 2007. They in turn promised to give you a year-end bonus if you kept your promises to them.

In your situation, the only reason that you did not satisfy all of the conditions your employer placed on your bonus is because they essentially canceled the deal before you could finish.

This situation is similar to a common law school hypothetical. Say one person promises another person to give them $10,000 if they walk across a bridge. At the very last second before the person crossing the bridge reaches the other side, the other person yells out that he is canceling the offer.

California courts often look at situations like yours and determine what is "fair". It is likely that a court would decide that you complied with your bonus contract and it was only your employer's act of canceling your contract that kept you from finishing performance.

If so, you would be awarded your bonus as well as attorney's fees, costs, interest and possible penalties.

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