The term "Wrongful Termination" encompasses many things with regard to California Employment law. At its broadest, this means any termination that is illegal under state or federal law. In its narrowest use, it means terminations that violate California's "public policy" and which courts have ruled are an illegal basis for termination.

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.

This is our second post in a series on employees' rights when they get laid-off from work.  In our last post, I pointed out that even though an employee may have been "laid-off" with several other employees, that does not necessarily mean they were not wrongfully terminated in being chosen for layoff.  This post deals with the situation where a large group may be "singled out" for wrongful termination.

For example, one of the most prevalent forms of class action employment law claims following a layoff is based on age discrimination.  A company often decides that the best way to cut costs in a layoff is to get rid of those with the most seniority, because they are usually the ones with the highest compensation.

However, California employment laws state that where an employer terminates an employee because of their high compensation relative to other employees, that is proof of age discrimination where the high compensation is a result of that employee's age.

In other situations, the "decider" of who stays and who goes in a layoff may have their own biases (conscious or unconscious) against certain groups of people based on race, gender, national origin or other protected characteristics.

The easiest way to prove this sort of discrimination is through statistics.  I have seen many layoffs where only those over 40 are laid off and then later replaced by new employees fresh out of college.  Similar evidence can be used where a male decision maker only lays off the females because the men have families at home.

Sometimes the only way to tell if this sort of thing is occurring at the time without the benefit of statistics is through anecdotal evidence.  However, under federal employment law if you are part of a mass layoff and over 40 your employer in most cases must provide you with a list of all other employees being laid off, including their ages and position.

It seems like every day another company announces mass layoffs in the United States.  While we are fielding more calls from potential clients than usual, they have not increased quite as much as overall unemployment.

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.

This is my second post in our multi-part series on "family status" discrimination, which is becoming more and more common under both federal and state law.

There are many ways family status discrimination can happen in the workplace, some of which are very subtle and difficult to prove. Other types are not subtle at all, such as the topic of today's post, which is what I call "Moral Stereotyping".

Moral Stereotyping Defined

Generally in family status discrimination claims the employer is largely concerned about how the employee's caregiver responsibilities affect them, such as increased absences, less dedication to the job, less focus, unreliability, etc. However. one of the unique aspects of moral stereotyping is that the employer is often more concerned about the well-being of the employee, her child her family or other paternalistic rationale.

Yes, it is true that even in 2008 there are many employers out there who still believe a woman "belongs" at home and that their primary duty is to raise children even to take care of their husband. In these situations, employers might even terminate an employee (to their own detriment) in an effort to force the employee to do what they believe is "right".

Some commonly-cited motivations based on this theory are discussed below.

"Women Belong at Home"

The notion that a woman simply "belongs at home" is the most common way in which these issues are expressed by management. This is a prime example of the sorts of gender stereotypes that foster discrimination against these employees.

The motivation here is not necessarily what is best for the employee or her child, but instead what the employer thinks she "should" do based on traditional gender roles. These employers think that even if the wife makes twice as much as her husband, she should quit her job to raise the children.

A more poignant way of expressing this can be found in Knussman v. Maryland, 272 F.3d 625 (4th Cir. 2001), where the employee was simply told "God made women to have babies". Speaking of God, several employers do cite their religious views as a basis for this discrimination, which exposes the employer to an additional claim for religious discrimination.

"Children Need Their Mothers"

The traditional notion that children must spend as much time as possible with their mothers is certainly ingrained in our society. This category of cases usually involves an employer who believes they know what is best for the child and believes they are acting in the child's best interest when they terminate or failure to hire the employee.

For example, in Moore v. Alabama State University, 980 F.Supp. 426 (MD Ala 1997), the employee's supervisor told her he believed women should stay at home with their family and denied her a promotion because the new job would involve too much travel for a "married mother", despite the fact that she applied for the job and had already worked out a plan with her husband to accommodate the travel.

Moral stereotyping is not limited to male management employees. Often these issues can come into play when an employee's female supervisor either has grown children or grandchildren and holds strong views on these issues they are not afraid to make known.

A variation on this theme is where an employee's supervisor expresses their belief that placing a child in day care is harmful to their development.

Men are the Breadwinners

Gender stereotypes are also commonly used against men. It is no longer unusual for a husband to drop down to part-time when a child is born while his wife, who might make more money than he does, continues to work full-time.

In certain testosterone-fueled workplaces, this can lead to harassment of "Mr. Mom" by co-workers or he might simply be denied the opportunity to work part-time, even though females are allowed to do so.

This type of claim is rapidly becoming more common as working mothers continue to enter the workplace and men volunteer to help with caregiver duties.

"Reverse" Caregiver Discrimination

Occasionally I come across a case where an employee has suffered "reverse" caregiver discrimination.

For example, if a layoff occurs in a company and a supervisor decides to terminate an above-average, single male employee and instead keep the below-average, married father of two.

In California, this more of an example of "marital status" discrimination, which is specifically prohibited under California law, but these facts could also constitute family status discrimination.

I use this example here because the supervisor is simply applying his own stereotypes and morals to "protect" the man with a family based on his own morals and values instead of what is "fair" to the better-performing employee or what is in the company's best interest.

Bringing Moral Stereotyping Cases

Moral stereotyping cases tend to be the most lucrative and easiest to prove among the various types of caregiver discrimination for a number of reasons.

First, they often involve the most inflammatory evidence that is offensive to the highest number of potential jurors. If a supervisor testifies to his belief that "God made women to have babies" and that this belief was why he did not hire the plaintiff, you can bet that many on the jury may be quite hostile towards the company when awarding the plaintiff damages.

Second, the supervisor who takes the wrongful actions against a plaintiff in such as case is often quite vocal about their motivations when they terminate or refuse to hire because (1) they truly believe they are doing the "right" thing, (2) they want the employee to know that this is the "right" thing and (3) it never crosses their mind that they are handing the employee a substantial lawsuit by "lecturing" them.

Apparently there is a new game show out called "Moment of Truth" that gives contestants a lie detector test before the show and then the host asks them the same questions on the air. If the contestant's answer on the air is different from the results of the polygraph, they lose (up to $500,000).

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.

Yesterday the California Supreme Court heard arguments in Ross v. Ragingwire Telecommunications, Inc.

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...

One of the strongest job protections for employees in the United States is for those who take a leave of absence to serve in the armed forces. I have seen a dramatic increase in these claims in just the past year and I recently filed a federal lawsuit for a client in San Francisco for some egregious violations.

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.

Q: I took a one-month FMLA medical leave for surgery, but my employer laid me off two weeks into the leave. I have always heard that an employer cannot terminate an employee who is on a medical leave. Is this true?

--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.

Q: I moved to California from Wisconsin six months ago to take a job with a company here. I quit a good job back home, my wife sacrificed a job she loved, and our kids had to leave all of their friends behind, and we moved our family to California. I was stunned last week when I was suddenly laid off by my new company.

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.

Q: One of my co-workers has asked me to testify for in her discrimination case against our employer. I want to help, but I am afraid that my employer will retaliate against me if I help her.

--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.

Q: My boss is a real jerk. She harasses me for no good reason, calls me names and belittles me in front of other employees. Today I finally told her not to treat me like that anymore, because it interferes with my work and it is unprofessional. She fired me on the spot for complaining. Please tell me this is not legal in California!

-- 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.

Q: Last week I found out I was pregnant and my husband and I were overjoyed. The next day, I went into work and told my boss. He said that he does not allow pregnant women to work there because they disrupt scheduling when they take time off to have the baby. He terminated me and said I could re-apply for my position after I have the baby. Help!

--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.

Q: My employer terminated me today (December 31, 2006). I was supposed to receive a $10,000 performance bonus for 2006, but one of the terms of my bonus agreement says that I have to be employed on January 1, 2007 to get my bonus. The company is not doing very well and I think I was actually terminated so that they did not have to pay me the bonus. Can they get away with this?

--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.