Wrongful termination is a general term for when an employee is fired for an illegal reason. As we have explained past articles, most employment is at-will. This means that an employee may be terminated for an unfair reason, which does not give rise to a claim for wrongful termination in the eyes of the law. For example, an employee can be unjustly blamed for making a mistake, or simply have a conflict with his or her boss, and be fired without recourse. The key in all suspected wrongful termination cases is whether the employee was terminated because of a protected status, which then makes the termination unlawful, and not simply unfair.
Protected categories, on which an employer cannot base a termination or any other adverse employment action (i.e. demotion, reduction in hours, etc.), include the following:
- Gender Identity
- Medical Leave (FMLA or CFRA)
- Mental Disability (such as Depression, Anxiety, PTSD, etc.)
- National Origin
- Physical Disability
- Sexual Orientation
- Whistleblowers (Wage and Hour, OSHA, Health & Safety, Healthcare Workers)
- Lawful Conduct Outside Of Work (Labor Code section 96(k)
The key to winning a wrongful employment case is to prove that the termination was based on one of these protected categories. Of course, employers rarely tell an employee that the termination is based on an illegal reason. An excuse is usually given. The employee is usually falsely accused of wrongdoing or poor performance, or the employer will often claim there was a restructuring that eliminated the employee’s job. This excuse is called a pretext. The job of a wrongful termination attorney is to prove the employer’s pretextual reason for the firing was false, and the real reason is the protected category. This can be done by showing any of the following:
- The employer’s excuse simply makes no sense. For example, they claim a restructuring, but the only person affected was the wrongfully terminated employee
- The employee’s performance was consistently meeting standards, but a new supervisor came in and began making comments about the employee’s protected category, such as their age, disability, etc.
- The timing of the termination in relation to protected activity, such as complaining about the employer breaking the law, and being fired shortly thereafter
- Any form of verbal harassment or criticism made by an employer against an employee with regard to protected activity, such as taking a medical leave, or requesting reasonable accommodations for a disability, injury, or medical condition
- Being singled out as part of a protected class or having engaged in a protected activity
Employees should keep records of all protected activity and improper conduct by the employer. An attorney or lawyer specializing in employment law and wrongful termination will be able to determine whether you have a potential case, and discuss your options without anyn upfront fees or costs. Most reputable employment lawyers handle cases on a contingency, meaning you pay no fees or costs unless there is a recovery.