Termination Considerations for At-Will Employment

terminationEmployee termination without cause. Can California workers be terminated without cause? California is an at-will state, meaning that either the employer or the employee may terminate the relationship at any time. Even so, California courts look at a number of factors when employees claim that a wrongful termination has occurred. If you find yourself without a job and believe the termination was unlawful, a local employment attorney can help.

Implied-in-Fact Contracts

Sometimes employers and employees have unspoken agreements that take precedence over an employer’s ability to fire at will. California courts do consider whether or not there is an implied contract. These determinations rest on the totality of several factors, including the employee’s length of employment with the company, employment practices within the industry, company policies, and employer actions that would give an employee a reasonable expectation of continued employment. One such case involved Wayne Pugh vs. Sees Candies. When Pugh was fired from his Palo Alto job without explanation, the courts found that, absent a written contract, the implied contract between employee and employer negated any right to fire without cause.

Express Contracts

When an employee’s contract expressly states that termination may only occur with cause, employers must have legitimate reasons documented for a termination. Often these contractual obligations are through a labor union, although oral agreements may be just as valid.

Statutory Protections from Termination

Despite being able to fire at-will employees without cause, employees cannot be terminated for a number of protected reasons.

  • Federal law calls out several protections, including race, gender, age, religion, and disability. California law piggybacks federal statutes, and adds additional protections for sexual orientation.
  • Public sector workers generally have termination policies and civil service laws that protect them from random terminations;
  • Union activity is also protected, so employees may join a union and exercise any collective bargaining rights without threat of termination.
  • Employees are also entitled to certain types of leave without fear of termination. Employees may miss work to vote in a state election, may take leave under the Family Medical Leave Act to care for sick family members, and may miss work to serve as a juror. Maternity leave is also protected for women. These are common reasons for which employees are entitled to take leave without fear of termination.
  • Federal whistleblower protections exist for individuals who report safety violations, discrimination, or other violations of either state or federal law.
  • Employees cannot be fired for their behavior or activities that occur outside of work. If the behavior is legal, employers cannot consider it in a termination.

[Read more…]

Employment Lawsuit VS FEHA 1 Year Statute of Limitations

Employment LawsuitCan I file an employment lawsuit even after the one year Fair Employment and housing act one year statute of limitations? Let’s say you are an employee working for a business in California, and you develop a physical disability. Your employment is terminated shortly thereafter. 15 months go by, and then you decide you want to file a wrongful firing claim.

You plan on arguing that your termination amounted to illegal discrimination based on your disability and that your employer’s action violated California’s Fair Employment and Housing Act (FEHA). As it happens, however, FEHA has a one year limitations period, and your firing took place over a year ago. Can you still file a valid claim?

If you guessed that filing a valid claim would be impossible, a California Court of Appeal would beg to differ. In the case of Prue v. Brady Company/San Diego Inc., it ruled that a plaintiff’s lawsuit could proceed, despite the expiration of FEHA’s statute of limitations, because it was a common law tort claim alleging violation of the public policy laid out in FEHA.

The Facts of the Employment Lawsuit Case

Adam Prue worked for Brady Company/San Diego Inc., and was injured on the job. His employer was informed about the nature of his injuries, and he was later terminated. He filed a claim over a year later, arguing that his termination was a violation of California public policy. Prue alleged that his manager told him that the hernia he suffered was the reason for his firing.

At trial, Brady Company filed a motion for summary judgment. The motion argued that Prue’s claim was barred by a one-year statute of limitations, which had expired. The trial court granted the motion, and dismissed Prue’s case.

On appeal, the Court of Appeal reversed the trial court’s decision, and allowed Prue’s claim to proceed. The Court held that Prue was permitted to a file his claim, because he was not actually filing a claim under FEHA, but rather a common law tort claim arguing that his termination violated California public policy, with FEHA being the statute that set forth the fundamental public policy in question.

The ruling stated that the relevant statute of limitations was the two-year statute of limitations under section 335 of the California Code of Civil Procedure. Prue’s claim was filed in April 2013, less than two years after his termination in July 2011, so the Court concluded that his filing was timely. [Read more…]

California Unlawful Discrimination Precedent Set By “Desperate Housewives” Case Ruling

unlawful discriminationCalifornia unlawful discrimination precedent established. In 2004, actress Nicollette Sheridan signed a contract with Touchstone Television Productions to play the role of Edie Britt on the television series Desperate Housewives. In 2008, she complained to Touchstone that the show’s creator, Marc Cherry, physically assaulted her during a rehearsal. When she learned that her contract was not being renewed for another season, she filed a complaint against Touchstone.

Sheridan’s original claim stated that she had been fired because she complained about the alleged assault, and argued that her firing was a wrongful termination in violation of public policy. Her claim went to court, where a mistrial was declared after the jury was unable to make a unanimous decision.

Sheridan then amended her claim, arguing that her firing amounted to retaliation under Section 6310 of the California Labor Code. In 2013, her case was dismissed, on the grounds that she was required to exhaust her administrative remedies under Sections 98.7 of the California Labor Code before she could sue under 6310. However, on October 20, 2015, a California Court of Appeal overturned that ruling.

The Appellate Court Weighs in

The Court of Appeal ruled only on the issue of whether Sheridan was permitted to file a lawsuit under Section 6310 without first exhausting her administrative remedies under Sections 98.7 and 6312. The decision held that she was not obligated to exhaust these remedies and allowed her complaint to proceed.

Section 6312 states that an employee may file a claim with the California Labor Commissioner under 98.7 if he or she alleges unlawful discrimination under 6310 or 6311. 98.7 states that an employee may file a complaint with the Labor Commissioner within six months of an alleged violation of any law under the Labor Commissioner’s jurisdiction.

The Court of Appeal’s decision holds that the use of the word “may” in Sections 98.7 and 6312 (as opposed to “shall”) indicates that filing a complaint with the Labor Commission was permitted, but not mandatory. In addition, the ruling points to the language used in subdivision (g) of Section 98.7, which states that the law has no requirement that a complainant exhaust administrative remedies.

The decision also cites the case of Lloyd v. County of Los Angeles, in which a public employee argued that he was wrongfully terminated in violation of Section 98.7. In that case, an appellate court rejected the County’s argument that the plaintiff was obligated to exhaust his administrative remedies. The Lloyd ruling stated that plaintiffs suing under the California Labor Code do not have an administrative exhaustion requirement.

What Does This Mean for Future Unlawful Discrimination – Wrongful Termination Lawsuits?

Since Sheridan filed her complaint, the California Legislature has amended the Labor Code to explicitly state that complainants do not have a requirement to exhaust their administrative remedies. The ruling described above asserts that there is no such requirement even for a complaint that was filed before these amendments went into effect in January 2014. [Read more…]

Cardenas v. Fanaian Firing Violated Public Policy Exception

public policy exceptionLast August we discussed California’s public policy exception for at-will employment – which prohibits employers from firing employees for reasons that contravene public policy. Since then, a California appeals court has ruled in favor of an employee who was fired for reporting a crime to the police, holding that her termination was in opposition to public policy.

Carcenas V. Fanaian – Facts of the Labor Law Case

In 2010, Rosa Lee Cardenas was working as a dental hygienist for a dentist named Masoud Fanaain. She realized one day that her wedding ring was missing and concluded that it had been stolen from Dr. Fanaian’s office. Cardenas and her husband filed a theft report with the police, and soon after, some police officers showed up at the dental practice and questioned employees.

After the police came to the office a second time, Fanaian terminated Cardenas’s employment. He told her that the presence of the police was making the staff uncomfortable. Cardenas filed a complaint against his practice in 2011, asserting that her firing was in violation of public policy.

Cardenas’s complaint also stated that her firing violated Section 1102.5 of the California Labor Code. 1102.5 prohibits an employer from retaliating against an employee for giving information to law enforcement, if the employee has reason to believe that the information pertains to a violation of the law. (It also protects employees who testify about legal violations and employees who give information to coworkers who have the authority to investigate legal violations.)

The Court’s Employment Law Holding

At trial, the jury sided with Cardenas regarding both causes of action and awarded her $117,768 in damages. Fanaian appealed the verdict to the Court of Appeal for California’s Fifth District, arguing that the firing did not contravene public policy.

The Court of Appeal upheld the decision. According to the opinion, Cardenas was engaging in protected behavior when she reported the theft of her wedding ring to the police because theft is a violation of the California Penal Code. Because there was a causal link between Cardenas’s police report and the decision to fire her, the termination was in violation of public policy.

Fanaian’s appeal asserted that that 1102.5 applies only when an employee discloses information about wrongdoing that is specifically related to the employer’s business activities. The Court of Appeal rejected this argument, holding that the plain language of 1102.5 does not contain any requirement that the information be about business activities. According to the opinion, the statute reflects an intent by the legislature to encourage employees to report unlawful conduct in general, and not just unlawful conduct by their employers. [Read more…]


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