“I just got fired. What do I do now?”
“Do I have a case? I think I was fired unfairly.”
“What qualifies as wrongful termination?”
“Is it hard to prove wrongful termination?”
“How do I find a good employment lawyer?”
In this article, we will define “wrongful termination” and then briefly describe how to fight back against this illegal and unfair practice by employers.
What is Wrongful Termination?
What does it mean that a worker was fired unlawfully? This means that the individual was wrongfully terminated by their employer for an illegal reason, such as being in violation of state, local, and/or federal discrimination laws. Plain and simple, an employee cannot be fired on the basis of their race, ethnic background, gender, sexual orientation, religious beliefs, or disability. But keep in mind that there are other reasons that qualify as wrongful termination—these include getting fired in violation of written and oral employment agreements and getting fired in violation of labor laws. Please consult with an experienced employment lawyer for complete details.
Can I Sue for Workplace Retaliation?
Yes. It’s also illegal to fire a worker because they made a legal complaint against their employer or acted as a whistleblower by revealing an employer’s workplace misconduct. Firing an employee for exercising their legal rights is considered to be retaliation by the employer—and that’s illegal.
When you contact an expert employment law firm (we’ll cover more of this below), they’ll help you determine if you have a strong case—but a good rule of thumb for figuring out if you’ve been wrongfully terminated is to ask yourself this simple question: Was I fired because of who I am? Although there are many other reasons that serve as the basis for wrongful termination suits, this simple question is a great starting point.
How Successful are Wrongful Termination Cases?
Very successful. In fact, wrongful termination suits have skyrocketed over the past twenty years, rising some 260%. More than 40% of these suits were against employers with less than 100 employees, and when these cases go to trial the employee wins more than 63% of the time. Many workers ask us: Is it worth it to sue your employer?Judging by the facts above the answer is a loud and resounding YES!
What Does “At-Will Employment” Mean?
You may have heard the term “at-will employment.” And you might be surprised to learn that your employer can fire you at any time for any reason—and without notice. In fact, in California, and in most states, this is what “at will” means: your employer doesn’t need a reason for firing you. But—and this is a gigantic BUT—”at-will employment” doesn’t mean that your boss can fire you for an unlawful reason, one that violates the law as listed above.
What Can I Do If I Got Fired Unfairly?
Many workers who are fired or quit because of harassment don’t realize that their rights have been violated by their employer. As you read above, wrongful termination can sometimes be difficult for the employee to determine. The decision requires experience and expertise—especially with so many legal changes going on. Don’t assume that you’re not eligible for consideration. An expert employment lawyer may find that your employer did not have a legal or legitimate reason for firing you.
Getting Fired Is Painful
There’s no doubt that getting fired can be very painful. Experts say that losing a job and being unemployed for a long period of time can create not only financial trauma but psychological trauma as well. Research has found that losing your job can be very damaging to your mental and physical health—especially when you’ve been wrongfully and illegally fired. That’s why winning a wrongful termination lawsuit can offer you satisfaction and resolution.
In California and across the country, laws and court cases have become very protective of employees’ rights. That’s why it’s so important to partner with experienced employment lawyers—experts who aren’t afraid to fight for your rights.
Checklist to 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.❖ ❖ ❖
Act Quickly! (You Can Fight Wrongful Termination)
Every year, approximately two million “at will” U.S. workers get fired or laid off—many, like the American Civil Liberties Union, believe that almost half of these fired workers get their pink slip either unlawfully of unfairly. But knowledge is power and employees are increasingly understanding wrongful termination. Employees have strong rights in the workplace as well as the freedom to speak up. There is a growing movement of employees that are pushing back on employers. Any employee who suspects they were wrongfully terminated—AND ACTS QUICKLY—has the advantage. In fact “statutes of limitation” apply to these cases, restricting when claims can be brought against employers.
If you believe you were fired illegally—or even if you’re not sure and need legal advice— take action today and contact us—the experts at Lawyers for Employee & Consumer Rights.