Fired in California: When Is a Termination Actually Wrongful?

Common Illegal Reasons for Termination

A wrongful-termination claim may arise from a number of different legal theories.

Discrimination

An employer generally cannot terminate an employee because of a legally protected characteristic covered by applicable discrimination law.

That can include characteristics such as race, national origin, sex, disability, age over 40, religion, sexual orientation, and other protected categories under California law. California’s FEHA generally applies to employers with five or more employees for employment discrimination.

Retaliation

An employer may not lawfully fire an employee because the employee exercised certain protected rights.

Examples can include complaints concerning:

• Unpaid wages
• Overtime
• Discrimination
• Harassment
• Workplace safety
• Certain leave rights
• Other violations of law

California law contains numerous anti-retaliation provisions rather than a single retaliation statute covering every workplace dispute.

Whistleblowing

California also protects qualifying employees who disclose or report certain suspected legal violations or engage in other protected whistleblower activity.

The exact requirements depend on the statute involved.

Refusing to Participate in Illegal Conduct

California’s wrongful-discharge public-policy doctrine has deep roots in cases involving employees who were terminated for refusing to participate in unlawful conduct.

The California Supreme Court recognized that an employee may pursue a tort claim when a discharge violates fundamental public policy.

Exercising a Legal Right

Depending on the circumstances, protections may also apply when an employee uses legally protected leave, seeks an accommodation, files a workers’ compensation claim, discusses wages, participates in an investigation, or exercises other employment rights.

“They Said It Was Performance”

An employer rarely writes:

“We are terminating you because you complained about discrimination.”

That is why wrongful-termination cases frequently involve circumstantial evidence.

Suppose an employee receives good reviews for several years.

Then she requests a disability accommodation.

Her supervisor begins documenting minor issues almost immediately.

Within weeks, she receives a performance improvement plan.

A month later, she is fired for supposed long-term performance deficiencies.

The employer’s stated reason may be legitimate.

Or the documents and timing may show something else.

That is what must be investigated.

What Is Pretext?

In employment litigation, you will often hear the word pretext.

In simple terms, it refers to evidence suggesting that the reason offered by the employer is not the real reason for its decision.

Possible warning signs include:

• The explanation changes over time.
• The employer cannot document supposed long-term performance problems.
• The employee received positive reviews shortly before termination.
• Other employees engaged in the same conduct without being fired.
• Company policies were ignored only in this employee’s case.
• The decision-maker made statements concerning the protected activity or characteristic.
• Discipline began shortly after protected activity.
• The employer departed from its normal procedures.

No single factor automatically proves wrongful termination.

The evidence is considered together.

Example: Unfair or Potentially Wrongful?

Consider two employees.

Employee A

Employee A is consistently late. The employer warns him repeatedly. He continues arriving late and is eventually fired.

He believes the punishment is excessive because another employer might have given him another chance.

That may be unfair from his perspective, but nothing in those facts necessarily suggests an unlawful termination.

Employee B

Employee B has never received attendance discipline.

She complains in writing that her supervisor is sexually harassing her.

One week later, the supervisor begins documenting minor attendance issues that were previously ignored.

Two weeks later, she is terminated for “attendance.”

That situation raises a very different question.

The termination is not potentially unlawful because attendance can never justify firing someone. It raises concern because of the evidence suggesting the stated attendance reason may have been used to conceal retaliation.

What Evidence Should You Preserve After Being Fired?

Employees often lose access to important information immediately after termination.

Preserve materials you lawfully possess, including:

• Termination letters
• Write-ups
• Performance evaluations
• Emails
• Text messages
• Pay records
• Schedules
• HR complaints
• Accommodation requests
• Leave requests
• Employee handbook provisions
• Offer letters or employment agreements
• Names of witnesses
• Notes identifying important conversations and dates

Create a chronology while the events are still fresh.

What Damages May Be Available?

Available remedies depend on the legal basis of the wrongful-termination claim.

Depending on the claim and facts, damages may potentially include:

• Lost wages
• Lost benefits
• Future wage loss
• Emotional distress damages
• Attorney’s fees under statutes that authorize them
• Punitive damages in appropriate cases
• Other statutory remedies

A wrongful-discharge claim based on fundamental public policy is a tort claim under California law, which is one reason the legal basis for the termination matters.

How Long Do You Have to Act?

There is no single deadline that applies to every wrongful-termination case.

For FEHA employment discrimination and retaliation matters, the California Civil Rights Department generally requires the administrative complaint process to be initiated within three years of the alleged unlawful act. Other statutory and common-law claims can have different deadlines and procedural requirements.

Do not assume that one deadline applies to every possible claim arising from a termination.