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Wrongful Termination
Wrongful termination is the most common subject matter of inquiries
from potential clients, and an area that consumes as much of the
time of our courts as any other in the employment field.
| Q. |
Can
I have a "wrongful termination" claim if I am employed
"at-will"? |
| A. |
Yes. Even
if you are employed at-will, you cannot legally be fired for
certain reasons.
Basically,
in California at present, it is illegal to terminate or take
other adverse action against any employee, even an at-will
employee, for a reason which falls within one or more of the
following categories:
Statutory
Discrimination Prohibitions:
It is illegal to terminate or take other types of adverse
action, against an employee, because of the employee's race,
color, religious creed, sex, marital status, age, national
origin, physical disability, mental disability, medical condition,
ancestry, or sexual orientation.
Protected
activities:
It also is illegal to take adverse action against an employee,
because the employee has engaged in protected activities,
such as having taken time off for pregnancy leave, family
leave, or military leave.
For
objecting to illegal conduct:
It also is illegal to take adverse action against an employee
because he or she has objected to illegal conduct at the workplace.
There are
other restrictions upon an employer's right to fire an at-will
employee. Also, some of the laws don't cover all situations:
for example, some of the smallest employers are excluded from
coverage of some of the discrimination laws. Because the exceptions
are very specific, you should obtain legal advice as to your
particular situation. |
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| Q. |
When
should I seek advice? |
| A. |
The sooner
the better. Some people consult an attorney when it looks like
they are about to be fired. If not, you should obtain advice
as soon after the events as possible, because one of the things
you will need to learn is the applicable "statute of limitation"
or deadline for filing either a lawsuit or an administrative
claim. Make sure that you learn the applicable time limits right
away. Sometimes the deadlines in employment cases are relatively
short. It is easy to lose track of these deadlines when your
circumstances are stressful. Be careful since if you delay in
making your claim you may forfeit your rights to proceed. |
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| Q. |
What
courses of action are available if I have been wrongfully terminated? |
| A. |
Sometimes
it is appropriate for us to attempt to negotiate a severance
agreement, under which the client receives some compensation,
and is able to get on with his or her life in a relatively short
period of time. Sometimes, however, an employer is not willing
to enter into a fair resolution of the matter, and a lawsuit
is advisable. |
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| Q. |
What
is expected of the Client if there is a lawsuit? |
| A. |
Much cooperation
and information is needed from the client. Remember, you were
there and lived the situation and we were not. You will be expected
to provide information informally. You will also have to answer
written questions which the defense may ask, and you may have
to have your deposition taken, which is where you are called
into a lawyer's office and asked questions. You also can expect
to be asked to assist in locating witnesses and documents. |
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| Q. |
What
can I get from a lawsuit? |
| A. |
Normally,
the only remedy a wrongfully terminated employee receives
is an award of money damages, which may include contributions
into pension accounts as well as back pay and payments for
general damages. As a general rule, courts do not reinstate
persons to their former jobs. Although money cannot necessarily
compensate for all the harm done, it is the most practical
method which our system provides for recompense.
The damages
we usually seek in these cases consist of compensatory damages
and punitive damages. Compensatory damages are meant to compensate
you, and consist of such things as loss of income, benefits
and fixed monetary items, and compensation for your mental
stress. Punitive damages are different; they are the same
as a fine and are a penalty against the defendant employer.
Punitive damages can only be awarded at trial, and not through
any settlement.
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| Q. |
Are
Arbitration Agreements enforceable? |
| A. |
Sometimes
an employer requires an employee to sign an agreement that the
employee will not sue in court, but that if there is any dispute,
it must be resolved through arbitration. These agreements usually
are enforceable, depending primarily on the specific provisions
of the agreement.
If you have signed such an agreement, you have not lost your
right to seek compensation for your damages. However, you may
not be able to bring your case before a jury. |
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| Q. |
Should
I look for other work when I have a wrongful termination case? |
| A. |
You should
make every attempt to find work. The law requires you to mitigate
your damages, i.e., to seek other employment, during the pendency
of your lawsuit. While you are not required to take a job which
is way beneath your former work, you should obtain all work
for which you are reasonably suited by education and/or experience.
Keep a careful record of every attempt you make to apply for
a job, whether this be answering a newspaper ad, sending a resume,
making a telephone call, or an inquiry made to somebody in the
supermarket or at a party. Your record can be kept on a simple
pad and should include the date, the name of the company, the
name of the individual contacted, the position for which you
applied, and the company's response (i.e. interview, etc.). |
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If you have additional
questions not answered in this FAQ, contact
us with your questions. |
