Category Archives: Discharge & Layoffs

This category examines when an employer can fire or layoff an employee without fear of violating the law. It also looks at whistleblower laws, the concept of an “at-will employee”, and a multitude of other issues with firing an employee. It also looks at real world examples and cases to shed light on the termination laws in California.

Top 3 Excuses Employers Use to Fire Employees

Our firm receives dozens of calls per week from people who were terminated from their job. Whenever people call we always ask, “Why did your company fire you?” While we receive a variety of answers, we do hear some of the same reasons over and over. So I figure it would be best to give a brief description of the top 3 excuses employers give to employees when they fire them. Here they are in no particular order.

1. At-Will Employment

Pretty much every single one of our clients is told that they are being terminated because they are an at-will employee and they can be fired for any reason whatsoever. This is not entirely true. Here is the truth: unless there is an agreement stating otherwise, an employer may terminate an employee at any time, with or without notice, and for any lawful reason. In other words, while an at-will employee can be treated badly and unfairly and can essentially be fired any reason, an at-will employee cannot be fired for a reason that violates California or Federal law.

Most employees do not know the intricacies of employment law. Thus, employers tend to use this excuse in an effort to scare the employee from seeking legal recourse. But, if an employee is fired for a reason that is a violation of law, then that employee may have a lawsuit. At the end of the day an employer cannot fire an employee for any reason whatsoever.

2. “It just isn’t a fit anymore.”

We have heard from countless potential clients that they were let go because “it just wasn’t a fit anymore.” And a lot of the times, these employees who are “no longer a fit” were working there for several years if not most of their lives. While an employee can be fired because they are no longer a fit at the company, often times such a reason is used as a pretext for an unlawful reason.

For example, we had a potential client call us a while ago who was over 60 years old and was working for the employer for pretty much his entire life. One day, he was randomly called into the office and fired because “it just wasn’t a fit anymore.” He was shocked. After almost three decades of service, they let him go because it wasn’t a fit!? Soon after he was terminated, he was replaced by a much younger employee. From those facts alone, we could infer that he was fired, not because it was not a fit anymore, but because the employer wanted to get rid of the old guy for the younger guy. If you were fired, after years of dedicated service, because “it just isn’t a fit anymore,” and you feel there is another unlawful reason behind it, call an employment lawyer to see if you have a case.

3. Poor Performance

There is no question that it is completely lawful fire an employee for poor performance. That is a completely valid reason if it is true. A lot of times, employers will claim the employee performed poorly, when in fact it is a fake excuse. We see time and time again an employee who all of a sudden is written up multiple times arbitrarily and then finally fired for poor job performance. Sometimes this is nothing but a cover up for an unlawful reason.

For example, a nurse is employed with a hospital for some time. At some point during her employment she begins reporting violations of patient safety. After making such complaints regarding violations of law, her employer begins to write her up and reprimand her for her “attitude” and “being two minutes late.” Then all of a sudden she is fired for “poor job performance.” Arguably, the hospital fired the nurse because she complained about patient safety complaints, yet made up arbitrary and random reasons to fire her.

Obviously, we have heard many more reasons other than these three. But the above three reasons are some of the most common reasons we hear employers give employees for termination. If you were fired and you feel there was something unlawful or wrong in the way it happened, contact an employment lawyer to get a free consultation.

Leave a Comment

Filed under Discharge & Layoffs, Retaliation, Whistleblower Protection

Employment Lawyer For Wrongful Termination

It always amazes us the things employers tell their employees. For example, we always get calls from employees who say their boss told them that they can fire them for any reason at any time because they are an at-will employee. This is not entirely true. In California, an employer can terminate an employee for any reason unless that reason violates public policy. Under California law, the public policy position supersedes over the at-will employment doctrine. You are probably wondering, “What is this public policy thing?” Basically, a wrongful termination in violation of a public policy occurs if an employer terminates an employee due to gender, race, national origin, family or medical leave, political activity, or for reporting unsafe working conditions. This is not an exhaustive list, but just some examples of wrongful termination in violation of public policy.

An Employer Cannot Fire An Employee For Reporting Unsafe Working Conditions

In Webb v. Ramos Oil Company, plaintiff was a truck driver who transported fuel for defendant employer. Plaintiff had been an employee for defendant for thirteen years. One day, while plaintiff was transporting fuel, the area in which he was driving was experiencing severe storm and heavy wind, as well as flooding from heavy rain. During his route, plaintiff’s truck would rock back and forth and almost tip over. In addition, plaintiff witnessed other cars strugging on the road, downed power lines, and flying debris. While on route, he called his employer and asked if he could postpone his delivery due to the dangerous driving conditions but his employer refused. When he was finally done with his route, he decided to join some friends for a drink. A few hours a later, he was called back to work, but said no because he had drank a few alcoholic beverages and because it was still way to dangerous to drive a truck transporting fuel. Plaintiff was fired a couple days later. Luckily, Plaintiff retained an employment lawyer.

The Defendant argued that Plaintiff basically made all of this up so he would not have to perform his job duties that day. Clearly, the jury did not buy this defense and awarded Plaintiff over $6 million dollars in economic damages, non-economic damages, and punitive damages.

Call A Lawyer If You Have Been Wrongfully Terminated

At the end of the day, this case shows that employers are still being held accountable for breaking the law and violating an employee’s rights. People in California are fired everyday, and most of the time, the person has no idea whether what just happened was lawful. If you feel like your termination was wrongful or there was something not quite right about it, thus it cannot hurt to call an employment lawyer. Most employment lawyers do a free consultation, and some will even tell you whether or not they think you have a case. Call an employment lawyer immediately if you feel you have been wrongfully terminated!

2 Comments

Filed under Discharge & Layoffs, Wrongful Termination

Wrongful Termination in Violation of Public Policy – California Law

Wrongful Termination Attorney Public Policy Lawyer CaliforniaGetting fired sucks. Despite the agony most people feel after being terminated, chances are the dismissal was completely legal. After all, California is an at-will state. But what if your gut tells you that your firing was illegal? Should you contact an attorney? Keep reading and I’ll let you know what constitutes wrongful termination in California.

Most employees in California are classified as “at-will” employees. At-will employment is a legal doctrine where either party can immediately terminate the employment relationship at any time with or without any advance warning, and with no subsequent liability, provided there was no express contract for a definite term. Employers often believe that they can fire an at-will employee at any time for any reason. This is false in California. A company can fire an employee for any reason except for a reason that violates public policy.

What Violates Public Policy?

This public policy position in California overrides the at-will employment principle. Although employment contracts are generally terminable at will (See California Labor Code § 2922), California courts recognize a narrow exception to this rule. An employer’s blanket authority to discharge an at-will employee may be limited by statute or by considerations of public policy. Tameny v. Atlantic Richfield Co. (1980) 27 C3d 167. While an at-will employee may be terminated for no reason, or for an arbitrary or irrational reason, there can be no right to terminate for an unlawful reason or a purpose that contravenes fundamental public policy.

But this begs the question, what does “public policy” mean? California courts have been interpreting this ever since the Tameny decision came down. If you believe your boss has fired, discharged, or laid you off for any of the below reasons, contact an employment lawyer as soon as possible:

  • Gender discrimination – Pregnancy discrimination, sexual harassment, and other forms of gender discrimination are clear violations of public policy
  • Unsafe workplace – Firing an employee for protesting unsafe working conditions violates public policy
  • Political activity – Discharging an employee because of his political activity, particularly political speech, is a violation of fundamental public policy
  • Race, color, national origin, or ethnic origin discrimination – Terminating an employee because he is black, brown, asian, or some other qualifying characteristic is against public policy
  • Family or medical leave discrimination – Terminating an employee because he or she took family or medical leave violates public policy
  • Prompt payment of earned wages – Failing to pay wages promptly is a violation of fundamental public policy
  • Whistle-blowing – Terminating employees for disclosing an employer’s violation of state or federal regulations to a governmental agency violates public policy
  • Testifying at a hearing – Discharge based on an employee’s taking time off (after reasonable notice to the employer) to appear in court as a witness violates public policy

There are many more reasons that qualify as wrongful discharge. Note that there is no “mean” public policy. Nor is there a public policy for jerk bosses, arrogant bosses, or critical bosses. That means than a boss can be mean, rude, and unbearable, but not violate public policy.

So how do you know if your boss’ conduct violates one of these public policy principles? Call an experienced lawyer today. If you would like to know whether your boss has wrongfully terminated you, contact an attorney for a free consultation.

________________________

Branigan Robertson is a California employment lawyer who exclusively represents employees in workplace disputes. He focuses his practice on sexual harassment, wage & hour, wrongful termination, and retaliation. Visit his website at BRobertsonLaw.com or call his office at 949.667.3025.

4 Comments

Filed under Discharge & Layoffs, Retaliation, Whistleblower Protection, Wrongful Termination

Your Employee File – An Employment Lawyer’s Perspective

Employee Personnel File Employment Attorney Request Employee FileAll current and former employees have the right to inspect and copy their employment file. Every employment attorney knows this fact. But what exactly are your rights? What are you entitled too? Can your company refuse?

California Labor Code section 1198.5(a) states:

Every current and former employee, or his or her representative, has the right to inspect and receive a copy of the personnel records that the employer maintains relating to the employee’s performance or to any grievance concerning the employee.

Generally, an employer must comply with your request within 30 days. If they fail to do so you should contact an experienced employment lawyer.

What must the employer give the employee?

According to Labor Code section 432 and the Department of Fair Employment & Housing (DFEH) employers are required to give an employee or job applicant, upon request, a copy of any instrument that the employee or applicant has signed relating to the obtaining or holding of employment.

Moreover, files that are generally considered to be “personnel records” are those that are used to determine an employee’s qualifications for promotion, pay raises, or disciplinary action, including termination. The DFEH has some examples of “personnel records” it believes should be disclosed:

  1. Application for employment
  2. Payroll authorization form
  3. Notices of commendation, warning, discipline, and/or termination
  4. Notices of layoff, leave of absence, and vacation
  5. Notices of wage attachment or garnishment
  6. Education and training notices and records
  7. Performance appraisals/reviews
  8. Attendance records

What happens if my employer refused to disclose my file?

An employer who violates, refuses, or neglects to comply with an employee’s right of inspection is guilty of a misdemeanor. Labor Code Section 1199(c). Despite this law, it is rare than an employer will go to jail for this. However, you may try to get penalties via section 1198.5(k), which states:

If an employer fails to permit a current or former employee, or his or her representative, to inspect or copy personnel records within the times specified in this section…the current or former employee…may recover a penalty of seven hundred fifty dollars ($750) from the employer.

Employment Attorney – What about my payroll records?

According to Labor Code section 226(b), employers are required to permit current and former employees to inspect or copy payroll records pertaining to that current or former employee. An employer who receives a written or oral request from a current or former employee for his or her payroll records shall comply with the request within 21 calendar days.

________________________

Branigan Robertson is a California employment lawyer who exclusively represents employees in workplace disputes. He focuses his practice on sexual harassment, wage & hour, wrongful termination, and retaliation. Visit his website at BRobertsonLaw.com or call his office at 949.667.3025.

1 Comment

Filed under Discharge & Layoffs, Employment Records, Labor Law, Uncategorized

Employees of Franchises May Be Able To Sue The Deep Pockets

dominospizzalogoA great case came down earlier this year that I’ve been meaning to blog about. Employee rights attorneys’ like myself are hesitant to take cases against small employers. This is true even when the employer is a franchisee (e.g. your local McDonald’s). Generally, franchisor’s (e.g. McDonalds corporate) isn’t liable for franchisee’s labor practices. Attorney’s like myself fear that we might litigate a case for two years, win a trial, but be unable to recover the full judgment because the local franchise doesn’t have very much money.

A recent case changes this in certain situations.  Patterson v. Domino’s Pizza, LLC held a franchisor can be held liable for alleged sexual harassment of an employee of the franchisee by a supervisor employed by the franchisee and for related claims.

The facts of the case are fairly common. Patterson was a teenage employee of Sui Juris, a Domino’s pizza franchisee. Renee Miranda was the assistant manager of that restaurant. Patterson claimed Miranda sexually harassed and assaulted her at work.

Patterson filed an action against Miranda, Sui Juris, and the franchisor Domino’s, alleging causes of action for sexual harassment in violation of Fair Employment and Housing Act (FEHA), failure to prevent discrimination, retaliation for exercise of rights, infliction of emotional distress, assault, battery and constructive wrongful termination. She claimed Sui Juris and Domino’s were Miranda’s employers and were vicariously liable for his actions under the legal doctrine of respondeat superior.

Continue reading

Leave a Comment

Filed under FEHA – Fair Employment & Housing Act, Franchise, Harassment, Independent Contractor, Retaliation, Sexual Harassment

Lisa Kudrow & Scott Howard to the California Supreme Court? Phoebe Wants to Fight.

In 2008, Lisa Kudrow (Phoebe from ‘Friends’) was dragged into court by her former manager, Scott Howard, who filed a lawsuit because she refused to pay him more than $50,000.

In the early 1990’s, Howard and Kudrow entered into an oral agreement for Howard to act as Kudrow’s personal manager. Kudrow agreed to pay Howard 10% of whatever she earned. In 1994, Kudrow landed the role of “Phoebe” on the television show “Friends.” Amazingly, for the last 18 episodes in 2004, Kudrow made $1 million an episode, plus 1 1/4 % of the show’s “backend” earnings.

So, what is the dispute about? Well, after Kudrow terminated Howard as her personal manager, she stopped paying him. Which seems completely fine except that the custom and practice in the entertainment industry at the time was for a personal manager to be paid post-termination commissions on the services that their clients rendered when the personal manager was representing them.

Currently, the two parties are bickering over when an expert should have been admitted. A Los Angeles County Superior Court barred Howard from admitting an experts testimony, and granted Kudrow summary judgment. The appeals court reversed Wednesday, saying Bauer should be allowed to testify on remand. Now, Kudrow may appeal it to the California Supreme Court.

________________________

Branigan Robertson is a California employment lawyer who exclusively represents employees in workplace disputes. He focuses his practice on sexual harassment, wage & hour, wrongful termination, and retaliation. Visit his website at BRobertsonLaw.com or call his office at 949.667.3025.

1 Comment

Filed under Discharge & Layoffs, Lawsuits & Lawyers, Leaving a Job

Pregnancy Series #2: Pregnancy Discrimination Is Not OK – What You Should Know

pregnancy discrimination at work in CaliforniaThis article is for pregnant working women and new moms in California.

I understand that work is important. If you don’t make money, you can’t buy diapers, formula, or clothing for your children. Your boss knows that the paycheck is very important to you, and sometimes he takes advantage of this by forcing you to work extra hours, or making you perform dangerous jobs that are hazardous to your health. He knows you need the money so you probably won’t complain.

Some bosses are even worse.  They simply fire pregnant women because they don’t want to deal with the hassle of filling your position while you are on leave. Nor do they want to continue paying your health insurance. They usually claim “poor performance,” “absenteeism,” or some other excuse as the reason for the firing.

Other bosses know the law and permit their employees to take leave. But demand that the employee be back in only a few weeks, or when the employee returns, the employer has drastically reduced their responsibility and cut their pay.

Is any of this behavior legal in California? No, it’s not. To find out more continue reading below.

Continue reading

2 Comments

Filed under Discharge & Layoffs, Family & Medical Leave, FEHA – Fair Employment & Housing Act, FMLA - Family & Medical Leave Act, Pregnancy, Retaliation, Sex Discrimination

My Boss Fired Me Because I’m Ugly. Can I Sue?

Were you fired because you’re ugly? Did your boss hire a beautiful replacement? Shouldn’t you be able to sue for that?  The NYT makes the case:

[W]hy not offer legal protections to the ugly, as we do with racial, ethnic and religious minorities, women and handicapped individuals?

The article has an interesting take on why ‘ugly’ people should be protected from discrimination in the workplace. It addresses the major problem, “what is ugly?”, in sheepish way.

For purposes of administering a law, we surely could agree on who is truly ugly, perhaps the worst-looking 1 or 2 percent of the population. The difficulties in classification are little greater than those faced in deciding who qualifies for protection on grounds of disabilities that limit the activities of daily life, as shown by conflicting decisions in numerous legal cases involving obesity.

Um. I’m pretty sure it would be harder than that. Beauty is extremely subjective. Not only that but picture the court proceedings. “Ladies and Gentlemen of the jury, my client is ugly.  Just look at her. She is simply not attractive. I’m here to prove that, not only is she terribly ugly, but her boss decided to fire her because of her looks, and proceeded to hire a attractive replacement. Please award my client $1,000,000.”

The absurdity is obvious.

________________________

Branigan Robertson is a California employment lawyer who exclusively represents employees in workplace disputes. He focuses his practice on sexual harassment, wage & hour, wrongful termination, and retaliation. Visit his website at BRobertsonLaw.com or call his office at 949.667.3025.

Leave a Comment

Filed under Discharge & Layoffs, Discrimination

Firing Horror Stories

If you own a small business, then you’ve fired someone before. I’m not talking about laying someone off. I’m talking about firing someone because they are incompetent. Its never fun. Its uncomfortable (because of the confrontation), annoying (because you have to hire someone else), and a lot of work.  You have to take the necessary steps to make sure the fired employee doesn’t become disgruntled. I generally believe that ‘disgruntled’ means disaster.  Here are a few disaster stories from CNN.

The stories range from hacking into the company’s servers all the way to physical fights.  They will entertain you.

________________________

Branigan Robertson is a California employment lawyer who exclusively represents employees in workplace disputes. He focuses his practice on sexual harassment, wage & hour, wrongful termination, and retaliation. Visit his website at BRobertsonLaw.com or call his office at 949.667.3025.

Leave a Comment

Filed under Discharge & Layoffs, Human Resources, Leaving a Job

Disparging Your Employer on Twitter

Disparging your employer on twitterA National Labor Relations Board report released last week attempts to explain the changing legal standards for social media usage in the workplace. It highlights a few of its administrative decisions regarding Twitter, Facebook, and other social media platforms.  One of the decisions interested me enough to re-post it here.

Continue reading

Leave a Comment

Filed under Defamation, Discharge & Layoffs, Human Resources, Labor Law, Retaliation, Social Media

Employee Non-Compete Agreements Invalid in California

Orange County, CA – Are you an employee?  Go find your employment agreement (the contract you signed when you started work at the company) and open it up.  I would bet that 75% of the employment agreements in California have some sort of provision that reads like this:

The undersigned Employee hereby agrees not to directly or indirectly compete with the business of the Company and its successors and assigns during the period of employment and for a period of X years following termination of employment and notwithstanding the cause or reason for termination.

If you’re an employee, you’re in luck.  These “non-compete” clauses (also called “covenants not to compete” or “restrictive covenants”) are almost entirely invalid in California.  If you’re an employer, can you ever restrict your current and former employees from competing?  Find out after the jump…

Continue reading

Leave a Comment

Filed under Discharge & Layoffs, Duty of Loyalty, Leaving a Job, Non-Compete Agreements, Restrictive Covenants, Retaliation