YOU’VE BEEN FIRED. Was it lawful? Were you, in fact, wrongfully terminated? We get a lot of calls from people with terrible bosses, who they feel have fired the caller for no reason. It’s completely understandable given the obvious economic consequences of termination. It is news that can be difficult to process. It seems unfair, and all too often, it appears to come “out of the blue.” Absent an employment contract setting out terms in which termination is acceptable, employees in California are considered "at-will," meaning they can be fired at any time with or without cause, provided that the employer is not motivated by an unlawful discriminatory reason. Unless your employer took the action because you belong to a protected class, e.g. your race, your religion, your sexual preference or identity, your age or your gender, a disability, or for being pregnant, the law generally allows an employer to let you go. Just like that.
It is also unlawful for your employer to fire you for taking protected actions, in other words, to retaliate against you for demanding your rights. With the passage of California’s new Equal Pay Act, it is also protected speech for you to speak to co-workers about salaries, in order to determine if you are being paid less than any of your counterparts of the opposite sex in the same job. Employees who are "whistleblowers" are similarly protected from retaliation, and that includes termination. If an attorney can prove these actions were motivated by discrimination or retaliation, an employer can be found to have violated the law, and would face exposure to monetary awards for lost wages, benefits, penalties, and attorney's fees.
Discrimination / Sexual Harassment
For harassment to be actionable, it must be discriminatory. There are some fairly disagreeable bosses out there, and the fact is, just being mean, even if the behavior is making everyone afraid to come to work, is not unlawful. Now, if a boss is nasty to you because you are a woman, (including inappropriate or unwanted sexual conduct) or because you are gay, or for any other reason that singles you out for belonging to a protected category, then you may want to contact a lawyer.
You cannot be fired in retaliation for any protected activity -- for example, union organizing, having previously complained about wrongdoing in the workplace, or contacting HR about an improper sexual advance. The law encourages employees to come forward and report these matters. So, if you are fired as a response to a legitimate complaint, then you may have a case that the decision to fire you was motivated by a desire to retaliate against you for the complaint. If you were a legitimate whistleblower, you may be entitled to share a percentage of any recovery obtained from the offending employer.
Whatever your situation at work, if it is truly untenable, and you believe the behavior is motivated by animus directed at you because of your status as a member of any of the protected categories, or because you are being retaliated against for speaking out against unlawful or immoral behavior in the workplace, document it. Write down details that will support your claim, make a record of statements made by others that are improper. Such a record may ultimately be what proves you were wronged, as even the best lawyer needs strong evidence. But be smart. Don’t remove company property, or copy sensitive files. Don’t record anything without the consent of all persons who are being recorded. We have written up some tips on how to document these matters properly on our website. If you are not in California, research how the law impacts methods of recording and documenting workplace wrongdoing in your state.
In California, you have a great deal of protection under the law. Even expressing frustration with your job on Facebook is often protected as speech connected to organizing.
You know that poster that your employer keeps on the wall? The one with all the notices of your rights? Read it. Make it a point to understand them. There’s a lot of great information there. When in doubt, contact an experienced employment attorney and protect yourself from as much as you can by knowing the rules that impact your employment.