Wrongful Termination & Discrimination

The basic rule sounds simple enough: California is an “at will” employment state, which means that, absent a contract for a longer term, either the employee or the employer can terminate the employment relationship at any time, with or without cause, for any reason other than those prohibited by law.

Yes, that’s a long sentence, and the problem is that the exceptions have nearly swallowed up the rule.  Let’s examine the two problems for employers with the “at will” doctrine:

  • Implied contracts; and
  • “Other than those prohibited by law”.

Most employees do not have a written contract for a specific length of employment. However, employers often unwittingly create implied contracts for long term employment, and can also create a requirement for “cause” with their conversations and policies. For example, well meaning statements such as: “Keep up the great work here and you’ll have a job for life” can create an implied contract for long term employment. Further, policies such as “probationary periods” for new employees can imply that once the probationary period is over, the employer is required to have a stronger reason (cause) to fire an experienced employee than one who is still new. Termination under either of the above examples is most likely to be considered a breach of contract, which, while not technically “wrongful”, can still lead to substantial awards for the employees.

The more commonly known form of wrongful termination is for those reasons expressly prohibited by law.  These include, but are not limited to: discrimination based on race, gender, sexual orientation, religion, military/veteran status, whistle-blower or workers’ compensation status, etc.  Although it is the employee’s burden to show that their termination is “wrongful”, once they make a prima fascia case, the burden then shifts to the employer to prove that the reasons for termination were other than wrongful.  For example, there is no express prohibition against terminating the employment of someone who recently filed a sexual harassment claim.  If you are laying off an entire department due to cost-cutting, and one of those employees just happened to have filed a recent claim, the employer probably has a solid defense to a claim of retaliatory discharge.  However, you are laying off 2 employees out of 15, and one of those two has recently filed a claim, be prepared to substantiate (with rock-solid evidence) your reasons why.

An employee need not be terminated to file a claim. An employee can also file a claim for discrimination because they were not hired, or denied a promotion. While few employers knowingly discriminate or engage in retaliation for legitimate claims, every employer is at risk of becoming a victim of frivolous claims. Any time an unusual situation arises that creates concern in these areas, the employer should immediately contact a management-side attorney to advise them.Our office represents management and employers exclusively in employment matters.

Please note that we only represent employers in disputes with their employees.  If you are an employee with a potential dispute, please contact your local bar association for a referral to an employee rights attorney.

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