This comprehensive checklist will help determine if you have a claim.
Employers frequently fire individuals in arbitrary and unfair ways—and many times these firings are deemed illegal. The American Civil Liberties Union reports that:
The magnitude of the problem is enormous. Two million at will employees are fired every year. When impartial arbitrators are given the opportunity to review termination decisions, half of them are found to be unjust. Experts believe that at least 150,000 people are unjustly fired every year.
Have you been recently fired from your job? If so, your employer’s action may have been illegal. The following checklist of wrongful termination standards will help you determine if you possibly have a valid and actionable claim. Keep in mind: if you were fired in violation of federal, state, or local laws, then your employer should be held accountable for their illegal actions.
Starting with a free consultation from our experienced and expert attorneys, Lawyers for Employment and Consumer Rights will fight for your rights in the workplace—and our legal services are provided at no cost. Our fee is a percentage of your settlement.❖ ❖ ❖
Here’s a checklist of the most common unfair and illegal actions by employers that can ultimately result in wrongful termination. In fact, many times employees are fired for challenging the following unlawful practices.
1) Racial Discrimination
Federal and state laws protect employees against being fired or treated unfairly because of a person’s race, the color of their skin, or ethnic background. Employees should be treated equally and be able to perform their job without harassment or discriminatory practices.
What is racial discrimination in the workplace? The obvious signs would include:
- an employer making decisions regarding hiring, firing, or promoting employees based on an individual’s race/skin color/ethnic background
- separating or segregating certain employees for certain jobs based on their race/skin color/ethnic background
- employers making distinctions of any kind in the workplace based on race/skin color/ethnic background—this is considered racial stereotyping
2) Sexual Harassment = Hostile Work Environment
Sexual harassment in the workplace is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964 as well as California’s Fair Employment and Housing Act(FEHA). The EEOC (U.S. Equal Employment Opportunity Commission) states the federal government’s clear guidelines in no uncertain terms:
It is unlawful to harass a person (an applicant or employee) because of that person’s sex. Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.
The EEOC (and California law) also makes it clear that “harassment” does not have to be of a sexual nature. It can include offensive comments about a person’s sex or gender. Also keep in mind that the harasser can be male, female, or the same sex as the person being harassed.
California’s Department of Justice writes:
Under California law, the offensive conduct need not be motivated by sexual desire, but may be based upon an employee’s actual or perceived sex or gender-identity, actual or perceived sexual orientation… This definition includes many forms of offensive behavior and includes gender-based harassment of a person of the same sex as the harasser, and actions that subject co-workers to a hostile work environment.
California law also recognizes what’s called “constructive termination.” Remember, if you’re forced to quit because of intolerable working conditions and/or a hostile work environment, your action may still be considered a wrongful termination. The law acknowledges that you believed you had no choice but to quit.
3) Age Discrimination
California workers are protected by both state and federal laws when it comes to age discrimination in the workplace. Once again, the law is clear: it’s illegal for an employer to deny employment, demote, or terminate a person based on their age.
In 1967, the federal government passed the Age Discrimination in Employment Act(ADEA), which protects individuals forty years of age and older from age-based discrimination. These protections include any and all phases of the employment process: interviewing, hiring, payroll, benefits, promotions, layoffs and firings. Workers over the age of forty have equal rights in the workplace and have the power to hold their employers accountable for discriminatory actions.
In California, the Department of Fair Employment and Housing (DFEH) is the agency responsible for enforcing state laws (like FEHA) that make it illegal to discriminate against a job applicant or employee because of age or any of the protected categories.
4) Wage & Hour Disputes or Unpaid Overtime
In many instances, employers will attempt to (1) miscalculate overtime hours as regular hours or (2) they’ll refuse to pay employees for work completed off the clock. Some employees may even have to battle their employer for (3) unpaid tips, bonuses, or commissions. In fact, not collecting your rightful pay can also include the following:
- unpaid back pay
- getting paid less than the minimum wage
- unpaid meal and rest breaks
- earned vacation time
- unpaid final checks
If you were fired as a result of challenging your employer for the fair and lawful payment on these or other issues, there’s good news: you have legal protections as an employee under both California and federal laws. The federal Fair Labor Standards Act (FLSA) covers comprehensive issues surrounding wage and hour disputes including those identified above. As well, if your employer violates California wage and hour laws by failing to pay you, among other things, the minimum wage, failing to pay required overtime, or failing to provide meal and rest breaks, then you have the right to sue under the California Labor Code.
It’s very important that you collect and keep any and all documentation regarding your pay history including pay stubs, schedules, and company policies. The more records you have, the better chance you’ll have when proving a wrongful termination claim.
5) Pregnancy, Religious, or Disability Discrimination
If you were fired for pregnancy-related issues, religious or disability discrimination, you may have a strong case against your employer for wrongful termination.
A] Pregnancy discrimination happens when a job applicant or employee is discriminated against based on their pregnancy, their childbirth, or a related medical condition. The federal Pregnancy Discrimination Act added the necessary protections for pregnant women to the Civil Rights Act of 1964. The EEOC is very clear:
The Pregnancy Discrimination Act (PDA) forbids discrimination based on pregnancy when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment.
California law also protects employees against discrimination or harassment because of an employee’s pregnancy, childbirth or any related medical condition. California law prohibits employers from denying or interfering with an employee’s pregnancy-related employment rights.
B] Religious discrimination occurs when an employer treats a job applicant or employee unfavorably because of their religious beliefs. Federal and California state law protects not only people who belong to traditional and organized religions, such as Buddhism, Christianity, Hinduism, Islam, and Judaism, but also individuals who have sincerely held religious, ethical, or moral beliefs. The law also prohibits treating a person differently because that person is married or associated with an individual of a particular religion. Once again, the EEOC is very clear on this count:
The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.
The California Workplace Religious Freedom Act of 2012 (WRFA) helped to expand the protections of the California Fair Employment and Housing Act (FEHA) with respect to religion. The law requires that the accommodation aspects of the religious discrimination laws extend to religious grooming and dressing practices—this includes facial hair, jewelry, and certain attire.
C] Disability discrimination arises when an employer treats a job applicant or employee unfairly because the individual has a disability. A number of federal laws prohibit discrimination against people with disabilities and guarantees equal opportunities for individuals with disabilities in the workplace. The main statute is the Americans with Disabilities Act (ADA). Two sections of the ADA relate to employment:
Title I: Employment prohibits covered employers from discriminating against people with disabilities in all employment-related activities, including hiring, pay, benefits, firing and promotions. Covered employers include private businesses.
The EEOC also points out that it’s illegal to harass an applicant or employee because they have a disability. They conclude that:
Harassment can include, for example, offensive remarks about a person’s disability. Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that aren’t very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
California’s DFEH also prohibits discrimination in the workplace with regard to disability. Similar to federal law, California law also requires an employer to provide reasonable accommodation to an employee or job applicant with a disability (unless doing so would cause significant difficulty or expense for the employer).
Again, if you were fired for pregnancy-related issues, religious or disability discrimination, you may have a strong case against your employer for wrongful termination.
6) Workers’ Compensation (or other) Claim Retaliation
California Labor Law (Code 132a) prohibits employers from firing, threatening to fire, or discriminating in any manner against an employee who has or intends to file a workers’ compensation claim. Please note that if an injury results in a workers’ disability, the same protections discussed above still apply.
It is important to note that California labor laws also protect workers from employer retaliation for the filing of any claims (workers’ compensation and numerous others)—of course, retaliation includes getting fired. Examples would include reporting or complaining about unsafe or unhealthy job practices as well as reporting job-related injuries or illnesses.
7) Whistleblower Retaliation
Similar to being fired by your employer for claim retaliation, you may have been wrongfully terminated for reporting illegal behavior on the part of your employer. For example, if you reported a case of sexual harassment to a superior or your human resources department and were fired soon thereafter, this might be a strong signal that you were fired as a direct result of reporting the sexual harassment.
You can also be wrongfully terminated if you were fired for “blowing the whistle” on unlawful or illicit activity by your employer—activities that include occupational health and safety violations, as well as fraud and associated illegal business practices.❖ ❖ ❖
If you believe you’ve been wrongfully and illegally terminated from your job—or forced to resign— the expert and experienced attorneys at Lawyers for Employment and Consumer Rights will fight for your rights. We offer a free and confidential consultation—and best of all, we won’t charge you any fees unless you receive compensation. Take advantage of our expertise today.