Table of Contents
- At-Will Employment
- Illegal Reasons
- Constructive Termination
- Terminations Motivated By Discrimination
- Terminations in Retaliation for Protected Reports, Complaints, or Communications
- Terminations in Retaliation for Requesting or Taking Protected Leave
- Terminations in retaliation for specific protected conduct are illegal
Wrongful Termination & Retaliation
Terminations motivated by illegal reasons are “wrongful.”
- At-will employment means that an employee is free to leave their jobs at any time and employers are likewise free to terminate the employee at any time for any lawful reason, or no reason at all. Labor Code § 2922.
- While employers can fire at-will employees for seemingly arbitrary reasons, the reasons cannot be unlawful. Binder v. Aetna Life Ins. Co., 75 Cal.App.4th 832, 857–858 (1999).
- Employees are generally required to show the employer was motivated by an unlawful reason when they terminated the employee. Caldwell v. Paramount Unified School Dist., 41 Cal.App.4th 189, 195 (1995).
- Common examples of illegal reasons include termination because: of age, race, color, or religion, or other protected class or characteristic; pregnancy or needing a medical accommodation during or shortly after giving birth; complaining or questioning rest breaks or meal breaks, overtime payments, commissions, or reimbursement of expenses; complaining about harassment, an illegal or dangerous practice at work; or filing a legal claim.
- Employers are sometimes motivated in part by legitimate business reasons, but will also be motivated by improper reasons. In other words, an employer can have several motivations for taking a negative employment action against an employee. These are called mixed-motive cases. Harris v. City of Santa Monica, 56 Cal.4th 203, 215 (2013).
- The employer’s discriminatory intent must have been a “substantial motivating factor” (not the sole or only factor) in the negative employment action taken against the employee. Davis v. Farmers Ins. Exchange, 245 Cal.App.4th 1302, 1320 (2016); California Code Regs., tit. 2 § 11009 (c).
- Constructive termination or discharge is when the employer’s conduct effectively forces an employee to resign. Turner v. Anheuser-Busch, Inc., 7 Cal.4th 1238, 1244 (1994). An employee might technically say “I quit,” but the employment relationship may be treated as having been ended involuntarily by the employer’s acts, against the employee’s will. Courts will therefore treat the resignation as a firing.
- Because employees generally cannot sue their employer for wrongful termination if they voluntarily resign or quit (although they might have other grounds for a lawsuit), there is a perverse incentive for employers who want to fire employees to avoid wrongful termination lawsuits if they can somehow get the employees to quit first. The legal doctrine of constructive termination protects against this.
- The employer must create a work environment that is so intolerable that any reasonable employee would resign rather than endure such conditions. Colores v. Board of Trustees, 105 Cal.App.4th 1293, 1305 (2003).
Terminations Motivated By Discrimination
- Protected Class & Characteristic Discrimination. One of the most common grounds for a wrongful termination claim arises when the employer has a discriminatory intent in firing the employee. The law prohibits employers that have five or more employees from discriminating against employees on the basis of their: age, if the employee is over the age of 40; race, color, national origin, or ancestry; religion; physical or mental disability; pregnancy; medical condition; genetic information; marital status; sex, gender, gender identity, or gender expression; sexual orientation; or military or veteran status. An employer cannot target an employee for termination for any of these characteristics. Government Code § 12940. The California Constitution, Article 1, § 8 states that a “person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of sex, race, creed, color, or national or ethnic origin.”
- Immigration Discrimination. It is unlawful for employers to discriminate against an employee based on their national origin. Government Code § 12940 (a). National origin discrimination can include discrimination against those holding the type of driver’s license that California gives to non-citizens. Government Code § 12926 (v); Vehicle Code § 12801.9. Employers are prohibited from reporting or threatening to report their employees’ citizenship or immigration status in retaliation for the employee’s exercise of an employment-related right. Labor Code § 244.
- Language Discrimination. It is unlawful for employers to limit or prohibit the use of any language in any workplace. Government Code § 12951 (a). In some cases, an employer commits wrongful termination if they fire their employee for speaking a different language in the workplace.
- Political Discrimination. An employer can commit wrongful termination if they fire an employee for their political views or activities. California law prohibits employers from controlling their employees’ political activities. Labor Code §§ 1101, 1102. Employers may not punish an employee for being a member of a specific political party. Nor may employers forbid employees from going to political rallies or becoming candidates for public office. Employers are also prohibited from trying to coerce or influence their employees to take any sort of political action. Labor Code § 1102. Political discrimination can be serious. In some cases, it is criminally punishable as a misdemeanor. Labor Code § 1103.
- Crime Victim Discrimination. Employers may not discriminate against employees who need to appear in court as a witness in a crime that they were the victim of. Labor Code § 230 (b). Nor may employers discriminate against an employee because of the employee’s status as a victim of domestic violence, sexual assault, or stalking. Labor Code § 230 (e).
- Criminal Conviction Discrimination. Most employers in California will be prohibited from asking job applicants about their conviction history before making a conditional offer. After a conditional offer is made, the employer may conduct a background check. Government Code § 12952 (a). If, after a conditional offer is made, the employer conducts a background check and discovers a prior conviction, they must conduct an individualized assessment of the applicant’s conviction history. The goal of this individualized assessment is to determine whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position. Government Code § 12952 (c).
Terminations in Retaliation for Protected Reports, Complaints, or Communications
- Complaining About Discrimination, Harassment, or Retaliation. An employer who fires an employee for opposing unlawful discrimination or harassment has committed wrongful termination. Employers are prohibited from firing or punishing employees who complain about, report, or otherwise oppose unlawful discrimination or harassment. Government Code § 12940 (m); Labor Code § 1197.5.
- Complaining About Unpaid Wages. Employees have a right to file a complaint with California’s Labor Commissioner when they believe they have been underpaid. Labor Code § 98 (a); Post v. Palo/Haklar & Associates, 23 Cal.4th 942, 946 (2000). California law prohibits employers from terminating, discharging, or in any manner retaliating against employees who file a wage and hour complaint with the Labor Commissioner. Labor Code § 98.6 (a). Even if no claim is filed with the Labor Commissioner, employers are prohibited from terminating, discharging, or in any manner retaliating against employees for complaining about unpaid wages. Labor Code § 98.6 (a).
- Complaining About Unlawful Work or Safety Conditions. Employers are prohibited from firing or punishing employees who complain about workplace safety issues. Employers are also prohibited from firing or punishing employees who report an issue of employee safety or health to a government agency. Labor Code § 6310 (a). Employers usually cannot fire or punish an employee who refuses to perform work that would violate any occupational safety or health standard. Labor Code § 6311. Employees are protected if they have to testify in a court proceeding about dangerous work conditions. Labor Code §§ 1102.5, 6399.7.
- Complaining About Patient Health and Safety. Employees of health care facilities are protected from retaliation for reporting matter affecting patient safety. Health and Safety Code § 1278. No health care facility shall discriminate or retaliate against any person who has presented a grievance, complaint or report to the facility. Health and Safety Code § 1278.5(b)(1)(A). The same is true for complaints or initiating a proceeding about unsafe patient care and conditions. Health & Safety Code § 1278.5 (b)(1)(A), (B).
- Communicating About Work Conditions. Employees have a right to discuss their work conditions–as long as those discussions don’t involve matters that may be trade secrets or legally-protected. Labor Code § 232.5. In keeping with this right, employers are prohibited from terminating employees for disclosing information about their working conditions to other people. Labor Code § 232.5 (c).
- Communicating About Compensation. Employees have a right to discuss the amount of their wages with other employees. Employers are prohibited from firing their employees for disclosing the amount of their wages to anyone. Labor Code § 232 (c).
- Reporting Unlawful Activities. An employer who discharges an employee for reporting unlawful activities commits wrongful termination.
- If an employee reasonably believes that the employer has violated a law or regulation, the employee has a right to report that violation to the government. The employee has a right to report that violation to an employee that supervises them. Labor Code § 1102.5 (a); Health and Safety Code §§ 1596.881, 1596.882.
- Employers are prohibited from punishing or terminating employees for disclosing information about a legal violation to the government, a law enforcement agency, or their supervisor. Labor Code § 1102.5 (a). Protected activity includes reports about violations of local as well as state and federal law, that involve only co-worker or third-party wrongdoing, regardless of whether disclosing the information is simply part of the employee’s job, and that went to the employer rather than to the government. Labor Code § 1102.5 (b); McVeigh v. Recology San Francisco, 213 Cal.App.4th 443, 471 (2013).
- Employers cannot prohibit employees from working with or testifying before any government agency that may be investigating or prosecuting the employer for legal violations. Labor Code § 1102.5 (b).
- Employers are prohibited from taking retaliatory action in a belief that “the employee disclosed or may disclose” relevant information. Employers cannot terminate “perceived whistleblowers,” even if in fact the employee never reported a violation. Labor Code § 1102.5 (b).
- Employers cannot terminate or punish employees for refusing to participate in unlawful activities. Labor Code § 1102.5 (c).
Terminations in Retaliation for Requesting or Taking Protected Leave
- Requesting Or Taking Family, Medical and New Parent Leave. Many employees in California have a right to take up to 12 workweeks of unpaid family or medical leave per year. Government Code § 12945.2; Government Code § 12945.6(a)(1). When an employee has a right to take family or medical leave, the employer is prohibited from firing them for exercising it. Government Code § 12945.2(l); Government Code § 12945.6(g). Employers cannot interfere with an employee’s FMLA/CFRA leave rights. Government Code § 12945.2(t); 2 California Code of Regs., tit. 2 § 11094(a) and (b); Government Code § 12945.6(h).
- Requesting Or Taking a Reasonable Accommodation. Employers cannot retaliate against employees in these situations for requesting an accommodation. This means that an employer will usually commit wrongful termination if they discharge an employee for requesting or requiring a reasonable accommodation. Disabled employees often have a right to work under different conditions than other employees. Government Code § 12940 (a), (m); Gelfo v. Lockheed Martin Corp., 140 Cal.App.4th 34, 54 (2006). They may also have a right to time off of work, as an accommodation for their disability. California Code Regs., tit. 2 §§ 11065 (p)(2)(M), 11068 (c). Religious employees may have a right to an accommodation of their religious practices and observances. Government Code § 12940 (l). Employees who have difficulty reading may have a right to a reasonable accommodation. Labor Code §§ 1041–1044. Employees with substance abuse problems may have a right to a reasonable accommodation for them to participate in an alcohol or drug rehabilitation program. Labor Code § 1025–1028.
- Requesting Or Taking Pregnancy Disability Leave. If an employee has a legal right to take pregnancy disability leave and they are fired for taking it, the employee probably has a claim for wrongful termination. Government Code § 12945 (a).
- Requesting Or Taking Sick Leave. Retaliate against employees who file complaints alleging violations of the Act, or who cooperate in an investigation or prosecution of an alleged violation or oppose any policy, practice or act prohibited by this law. Employers will be faced with a “rebuttable presumption” of unlawful retaliation if an employer takes adverse action (including denying the right to use accrued sick days) against a person within 30 days of when the employee: Files a complaint with the Labor Commissioner or alleges a violation of this law; Cooperates with an investigation or prosecution of an alleged violation of this law; Opposes a policy, practice, or act that is prohibited by this law. California law prohibits employers from firing employees for using sick leave they have accrued. Labor Code §§ 245-249; Labor Code §§ 233,1512.
- Requesting Or Taking Lactation Breaks. Employers can commit wrongful termination by firing an employee who has requested or expressed a desire to take a lactation break. Labor Code §§ 1030–1033.
- Requesting Or Taking Time Off To Vote. All employers in California are required to permit their employees time off to vote in any statewide election, if the employee will not have sufficient time outside of working hours to vote. Elections Code §§ 14000–14002.
- Requesting Or Taking Military Leave. Employees who join the military generally have a right to take up to five years of leave while they serve. 38 U.S.C. § 4312. When they return, they have a right to prompt reemployment with the employer. 38 U.S.C. § 4313. An employer may not punish or fire an employee for joining the military or requiring less than five years of time off to serve. 38 U.S.C. §§ 4311–4313. When the employee returns from leave, the employer may not fire the employee without cause for one year (if the employee’s period of service was more than 180 days). 38 U.S.C. § 4316(c).
- Requesting Or Taking Jury Duty. You cannot terminate or discriminate against any employee who takes time off of work to serve on a jury or as a witness as required by law, if the employee gives you reasonable notice of the need for time off. Labor Code §§ 230(a) and (b).
- Requesting Or Taking Parents And School Activities. Employees often want to take time off to participate in a child’s school or child care related activities, such as teacher conferences, award ceremonies or school plays. They also may need time off to deal with enrolling children in school or in child care, or for school or child care emergencies. An employer cannot terminate, or in any way discriminate against, a covered employee for taking the time off. An employer who violates this law may be required to rehire the employee and/or reimburse the employee for lost wages and work benefits. Labor Code § 230.8.
Terminations in retaliation for specific protected conduct are illegal
- Disclosing a positive COVID-19 test or diagnosis or order to quarantine or isolate. Labor Code § 6409.6(f).
- Exercising Rights Under the Law. Labor Code § 98.6.
- Reporting Work-Related Injury. Labor Code § 6310(a)(3).
- Refusing to Sign an Arbitration Agreement. Labor Code § 432.6(b).
- Refusing to Lift Patient Due to Safety. Labor Code § 6403.5(g).
- Updating Personal Information. Labor Code § 1024.6.
- Not Disclosing Social Media Information. Labor Code § 980(e).
- Having Wages That Were Subject to Garnishment. Labor Code § 2929(b).
- Participating in the Unemployment Process. Unemployment Insurance Code § 1237(a).
- Expressing an Opinion Concerning Alternative Workweek Election. California Code of Regs., tit. 8 § 11010-11130 (3).
- Refusing to Work Hours in Excess of Maximum Hours. Labor Code § 1198.3(b).
- Performing Military Duty. Military and Veterans Code § 394(d).
- Advocating for Medically Appropriate Healthcare. Business & Professions Code § 2056(c).
- Complaining About Hazardous Substances Information and Training. Labor Code § 6399.7.
- Disclosing Violations of the False Claims Act. Government Code § 12653(a).
- Disclosing Violations of Law or Wasteful Spending to the State. Government Code § 8547, et seq.
- Disclosing Violations of Law or Wasteful Spending to the Legislature. Government Code § 9149.20, et seq.