Category Archives: Retaliation

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.

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Filed under Discharge & Layoffs, Retaliation, Whistleblower Protection

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.

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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.

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

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.

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

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.

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

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.

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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…

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