terminated employee

If you work in California and are not a union member, chances are that your employment is “at will.” This means that your employer can terminate your employment at any time, with or without notice, for almost any reason they see fit. The key word here is “almost.” Even if your status is “at will,” an employer cannot discriminate against or terminate you for reasons that the law specifically prohibits.

Is Your Employment “At Will?”

In California, the presumption is that your employment is “at will.” This is reflected in Cal. Labor Code Section 2922: “An employment, having no specified term, may be terminated at the will of either party on notice to the other. Employment for a specified term means an employment for a period greater than one month.”

The default of “at will” status can be altered through a contractual agreement. Most frequently, this happens when unions negotiate collective bargaining agreements on behalf of their members. Collective bargaining agreements usually provide job protections, including by requiring progressive discipline and “just cause” to terminate an employee.

An individual employee can also enter into an employment contract for a specified term or one that requires “good cause for termination.” Such contracts are not very common as most employment is open-ended. Rarely, even in the absence of a written contract, a court will find an implied contract limiting “at will” termination based on, among other things, the employer’s policies, practices, actions, and statements.

Even if Your Employment Is “At Will,” You Can Still Sue Your Employer for Wrongful Termination

If your employment is at will, your employer does not need “good cause” to fire you. They don’t need to be “fair.” They can be arbitrary. They can be cruel. But they cannot break the law by firing you for reasons that are illegal.

What is prohibited? You cannot be terminated because:

  1. You are a member of a protected group;
  2. You are associated with someone in a protected group;
  3. You engaged in a protected activity;
  4. You refused to violate a law;
  5. You reported an alleged violation of a statute of public importance;
  6. You performed a statutory obligation; or
  7. You exercised a statutory right or privilege.

Let’s cover each of these.

1. An employer cannot discriminate against (including by terminating) an employee because they are a member of a protected group.

Protected group membership includes: race; religion; color; national origin; ancestry; age; physical disability; mental disability; medical condition; genetic information; marital status; sex; gender; gender identity; gender expression; sexual orientation; and military and veteran status. (Cal. Gov’t Code Section 12940(a).)

2. An employer cannot discriminate against or terminate someone based on their association with someone in a protected group.

An employer cannot terminate someone because their spouse, child, or other person close to them is a member of a protected group. For example, it would be unlawful for an employer to terminate an employee with a disabled child out of fear that they might miss too much work caring for the child.

3. An employer cannot terminate someone in retaliation for engaging in a protected activity.

There are a broad variety of actions that are considered “protected activity.” They include:

  • Complaining about discrimination, harassment, or retaliation based on a protected category;
  • Filing a complaint with or providing testimony before the Labor Commissioner;
  • Asking for wages that are due or disclosing one’s own wages;
  • Complaining about workplace safety or otherwise discussing one’s working conditions;
  • Filing a workers’ compensation claim;
  • Engaging in other conduct protected by the Labor Code;
  • Advocating for patient safety and appropriate care; and
  • Union membership and concerted, protected activity under the National Labor Relations Act.

4. An employer cannot terminate someone for refusing to break the law.

I have written previously about Labor Code Section 1102.5, which protects California whistleblowers. Employees cannot be punished for refusing to violate local, state, and federal statutes and ordinances.

5. An employer cannot terminate an employee for reporting an alleged violation of the law.

Whistleblowers are protected when they speak up against unlawful conduct, whether by reporting it internally to their employer or by reporting it to governmental authorities.

6. An employer cannot terminate someone for taking legally required actions.

For example, if a school nurse (a mandated reporter of child abuse) reports suspected abuse, the nurse cannot be terminated for making the report.

7. An employer cannot terminate an employee for exercising a statutory right or privilege.

This category overlaps with the “protected activity” category. Such rights include:

  • Taking job-protected medical or family leave, if you are covered under a statutes such as the Family and Medical Leave Act, the Pregnancy Disability Leave Law, or the California Family Rights Act;
  • Taking time off under other leave laws, such as to care for a sick family member under California’s Kin Care Law or to attend a certain school-related activities for one’s child;
  • Taking time off for jury service or to attend certain judicial proceedings;
  • Serving in the military; and
  • Engaging in lawful conduct during nonworking hours away from the employer’s premises.

Conclusion

Employers have wide latitude in making decisions about whom to hire, fire, promote, and demote. They need not be fair, wise, or right in their decisions. However, they must still follow the law, and the law provides a great deal of protection to “at will” employees.

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Image ©iStock.com/Stefano Lunardi

“At Will” Employment and Wrongful Termination was last modified: May 13th, 2017 by Ramit Mizrahi

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