The most challenging part in anyone’s work life is usually losing a job. Whether it’s called downsizing, dismissal, or termination, losing your job takes a severe emotional and financial toll. In some cases, you may be protected from termination by California law.
What is wrongful termination in San Francisco?
Wrongful termination is when you are fired for an illegal reason. Broadly speaking, there are three ways a firing can be illegal:
- It is discriminatory,
- It is made in retaliation for exercising a legal right,
- It violates public policy, or
- It violates an employment agreement
- Wrongful Termination: Discrimination
Firings on the basis of age, race, gender, religion, disability, and nationality are illegal under federal laws.
California and San Francisco laws provide additional protection against discriminatory firings. For instance, California’s Fair Employment and Housing Act covers some of the same protected classes as the federal law, including:
- Marital status,
- Sexual orientation,
- Having AIDS or HIV,
- Arrest or criminal accusation, or
- Political activities
- Learn more: Employment Discrimination, Gender/Sexual Harassment, Pregnancy Discrimination, Disability Discrimination
Wrongful Termination: Retaliation under California Law
Illegal retaliation occurs when an employer fires an employee for doing a legally protected activity. To make a retaliation claim, you must first prove that what you did was legally protected. Some activities protected from firing are:
- Filing a workers compensation claim,
- Filing a claim for overtime or minimum wage pay,
- Filing a discrimination claim,
- Taking family or medical leave, or
- Reporting a workplace safety violation
Then, you must prove that your employer fired you, demoted you, or otherwise treated you badly for doing the protected activity. You can establish a connection between two actions by showing that the retaliation happened immediately after your employer found out what you did. Retaliation cases are
Wrongful Termination: Violation of Public Policy in San Francisco
Employers sometimes fire workers for doing things that benefit society. These firings are illegal as “violations of public policy. Some examples that violate public policy are terminations for:
- Taking time off to serve on a jury,
- Taking time off to vote,
- Serving in the military, or
- Reporting harmful activities done by the company to authorities (whistleblowing)
Whistleblowing carries some additional duties if you are going to be protected from retaliation. You must have good reason to believe that there is a violation, and you must act with good motives in reporting the violation. A number of states also require the whistleblower to report the violation to the company before going to the authorities. Not all states protect whistleblowers from retaliation for all legal violations and harmful acts but San Francisco and California employees enjoy broader protection.
Wrongful Termination: Violation of Employment Agreements
You have an employment agreement when three things happen:
- You or your employer makes an offer,
- The other party accepts the offer, and
- You both get something of value in the agreement
For most employment agreements, a company offers you a job, you accept the position, the company gets your work, and you get paid. Having an employment agreement helps protect your job only if it limits the circumstances when you can be fired or sets out how long your job will last.
An employment agreement does not have to be a formal, written contract. Job postings and employee manuals can create an employment agreement. For example, a job posting that says a position is permanent may create an agreement that the employee can only be fired for good cause. Also, disciplinary procedures in an employee handbook may create an agreement that the company has to follow the procedures before firing.
Sometimes a company knowingly misleads its workers in a way that is so extreme that it amounts to fraud. To have a valid fraud claim, you must show:
- Your employer made false representations about your job,
- Your employer knew that the representations were false,
- Your employer intend to trick you or knew that you would rely on the representations in deciding to take a job or stay in a job,
- You actually relied on the representations being true, and
- You were harmed by relying on the representations
It is often very hard to prove that your employer purposefully misled you, but if you can prove fraud, you can recover for all the harm resulting from the fraud. These may include the costs of moving to take the job and the damage from leaving your old job.
Legal Options after a Wrongful Termination
If you were fired illegally, you can bring a “wrongful termination suit” against your former employer. Depending on the type and extent of the violation, you can recover your position, lost pay and benefits, attorneys’ fees, or a money award aimed at punishing the company.
Outside of bringing a suit, you may seek arbitration or mediation with the company on the wrongful termination. Arbitration and mediation are methods of resolving a legal dispute where someone with no relationship to the dispute helps resolve the issue without a court. These methods are often less expensive and time-consuming that going to court, and they can provide the same compensation as a court.
It is important to quickly assess and act on your rights. All claims are subject to time restrictions, so you could lose your right to compensation by waiting to file a suit. For example, in California you have only 300 days from the act of discrimination to file a federal discrimination claim. Many employment lawyers take certain cases where they only get paid if they win your case.
Many times, former employees think that they have a wrongful termination claim when they really have a claim for how their rights were violated while on the job. We frequently see cases at the Ottinger Firm where a fired employee has a claim for overtime pay and benefits because their former company unlawfully misclassified them as a type of worker who is not entitled to these benefits.
Overtime, Misclassification of Independent Contractors
What should you do to protect your legal rights when you’ve been wrongfully terminated?
- Request the reasons for your termination in writing.
- Ask for your employee personnel file and copy all the documents in it.
- Gather up all the documents related to your employment and termination. Its best to start creating a file of work documents as soon as you start a job, so if you have been disciplined repeatedly or just sense things going downhill, begin creating a paper trail right away.
Write down all the important events that happened while you were employed. Record the date, time, and who was present at the event. Important events include:
- Hiring and firing,
- Promotion and demotion,
- Raises and pay cuts,
- Discriminatory remarks or actions,
- Performance reviews, and
- Disciplinary actions
Can your former employer have you waive (give up) your right to sue?
Your former employer cannot force you to sign a waiver of your right to sue for wrongful termination. Your employer can entice you to waive a wrongful termination claim by offering more severance pay than they are required to give you. Even if you do sign a waiver, it may not prevent you from suing. Under some circumstances, you may be under such great pressure to sign a waiver that courts will not enforce the waiver.
If you are offered a waiver upon termination, ask for more time to think it over. Workers 40 and older have 21 to 45 days under California law to consider participating in an early retirement program. Take the opportunity to talk to a lawyer before you sign away your rights and opportunity to bargain for a better severance package.
What can you do if you think you have been wrongfully terminated?
Contact the San Francisco employment attorneys at the Ottinger Firm to learn about your rights.
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