Wrongful Termination

Wrongful termination describes a situation in which an employee is fired or laid off by the employer for an unlawful reason. What makes it wrongful is that the employer’s termination action may be in violation of state or federal laws against discrimination, it may violate terms of an employment contract or employee handbook, or it may go against labor or collective bargaining laws; the unlawful termination may also be a form of sexual harassment or retaliation by the employer against the employee.

A wrongfully terminated employee may have rights to lost wages, damages, severance pay or compensation for unemployment. In addition, an employer that wrongfully terminates an employee may be subject to statutory penalties.

What is At-Will Employment?

At-will employment means that either the employee or the employer may end the employment relationship at any time, for any reason or for no reason at all. In California, employment relationships are presumed to be at-will unless there is a contract between the employee and the employer stating a specific duration of employment. A contract that is for an indefinite period will generally be considered as creating an at-will employment relationship. While at-will employment is without written contract, the terms of employment may be modified by statements, assurances or promises made by the employer, or by the employer’s failure to comply with the practice of performance reviews, discipline warnings or notifications required by the employer’s own human resources handbook.

What is a Whistleblower?

According to the California law, a whistleblower is an employee who discloses information about his or her employer to a government or law enforcement agency describing a suspected illegal/criminal action by the employer, such as a violation of a state or federal statute, a violation or noncompliance with a state or federal rule or regulation, or unsafe working conditions or work practices in the employee’s employment or place of employment. According to the California State Attorney General, “Under California Labor Code Section 98.6, if an employer retaliates against a whistleblower, the employer may be required to reinstate the employee’s employment and work benefits, pay lost wages, and take other steps necessary to comply with the law.”

Can At-Will Employees Bring Wrongful Termination Claims?

Generally, for the employee to be able to prove the employer violated a public policy by terminating employment, the public policy must be substantial and important. Public policies generally fall into one of three categories:

• The employee exercised a statutory right or obligation
• The employee refused to engage in an illegal activity
• The employee reported criminal conduct to supervisors and/or outside agencies (“whistleblower”)

Some jurisdictions require that the public policy be one recognized by the legislature and appear in the state constitution or statutes. Other jurisdictions will allow public policies that have been recognized by judicial or administrative declarations.

Some jurisdictions recognize the concept of implied good faith and fair dealing in an at-will employment relationship. In these jurisdictions, the employer is prohibited from terminating an at-will employee for a bad faith reason, such as fraud or misrepresentation by the employer.

While tests to prove wrongful termination claims for at-will employees vary by jurisdiction, in general, the burden falls on the employee to show:

• The existence of a substantial and important public policy
• The employee participated in the type of conduct the policy was meant to encourage
• The employer knew or believed the employee participated in this type of conduct
• Retaliation motivated the employer to dismiss the employee
• The employer's dismissal of the employee undermines the public policy

If You Suspect You Have Been Wrongfully Terminated

Keep copies off all materials and communications (both print and electronic) provided by your employer, or between you and your employer, related to your employment, such as an employee’s handbook, letter of appointment, contracts, copies of employee policies, performance reviews, discipline warnings, etc. Make notes about verbal communications between you and your employer regarding your employment, including dates. Seek legal advice before you sign anything.

Seek Legal Advice

An experienced employment law attorney can determine whether your state's laws permit wrongful termination claims for at-will employees and the legal remedies that may be available to you. For more information on at-will employment, contact a knowledgeable attorney in your local area today. Attorney Shannon Foley is available to answer your questions. Her email address is ; telephone at: 424.529.0777.

Contact Foley Lyman Law Group LLP