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Newark, CA 94560 
Tel:  510-277-0191
It is of vital importance that employees and employers work together harmoniously in order to make a business successful. The employment relationship is one of the most important there is., probably second only to family relationships. When problems arise between employers and employees it is necessary to have a system in place that will provide guidance insolving the problem issues. Both federal and state law control how employers and employees can work together. 

When is a termination unlawful?

​​Much of employment law is based on civil rights, as enumerated in Title VII of the 1964 Civil Rights Act. California is an at-will state with regard to employment, meaning that employees are free to leave their employer at any time, and employers are likewise free to terminate employees at any time. Many employees believe that employers need a reason to terminate them, and that as long as they do their best and work well they cannot be terminated. Unfortunately, this is not true. Employers in most private companie have the right to terminate employees as long as the employee's civil rights are not violated, no contracts are broken by the termination, or no laws are violated by the termination. In case an employee is terminated it is necessary to conduct a thorough investigation to determine if in fact any legal rights have been violated by the termination.          

Civil Rights

The term "wrongful termination" is often used without a clear understanding of what this really means. When is a termination wrongful in the eyes of the law? The answer is simple. A termination is wrongful when an employee is fired for an unlawful or impermissible reason. A termination on the basis of any of the following would be unlawful:
  • Physical disability (FEHA or ADA)
  • Mental disability
  • Use of Family Medical Leave (FMLA or CFRA)
  • Pregnancy
  • Race
  • Religion or religious practices
  • Gender
  • Age
  • Sexual orientation (i.e. homosexual, bi-sexual, etc.)
  • Gender identity (i.e. transgender, etc.)
  • Pregnancy or maternity leave
  • National origin
  • Political affiliation
  • Constructive termination - hostile work environment
  • Retaliation for workplace health and safety complaints
  • Retaliation for complaining about unpaid wages or overtime
  • Retaliation for reporting Labor Code violations, such as failure to provide meal or rest breaks
  • Retaliation against health care workers for reporting patient safety concerns

"At-will" employment is not an excuse for wrongful termination.  Employment "at will" simply means that an employee does not have a contract for a certain length of time. The employee can be terminated at the will of the company. But, while we hear the "at-will" buzzword from employers' counsel all the time, terminating an employee for an unlawful reason is still a wrongful termination. This happens every time an employer decides to terminate an employee because of a protected characteristic, such as having a disability. It is a fact that unlawful terminations occur every day, and are regularly committed by some of the largest companies in the world.

Wrongful terminations occur where there are "mixed motives" -- i.e. where both permissible and impermissible reasons are the basis to terminate.  When an impermissible reason is a substantial motivating factor in the decision, the termination is wrongful. If the company decision maker was motivated by any of the above factors in deciding to terminate an employee, even in part, then the employee may have a valid legal claim for damages.  The unlawful reason must only be something more than a remote or trivial factor.  This rule is important to employees because employers often provide pre-texts for termination that may appear facially legitimate. However, as long as the impermissible reason is something more than a trivial factor -- a very low standard -- the employer is liable.

Whistleblowers are also protected from retaliation. A whistleblower is someone that reports illegal or unsafe working conditions to his or her employer, to a government agency (such as the Labor Board or OSHA) or to law enforcement.  Labor Code section 6310 protects workers in California from retaliation for complaints about unsafe or unhealthy working conditions.  

Labor Code section 1102.5 protects employees who report or complain about illegal conduct by the employer or refuse to take part in unlawful activities at work.  This includes employee complaints about Labor Code violations, such as unpaid overtime, missed meal or rest breaks, or improper classification of an employee as an independent contractor. 

Anti-retaliation laws protecting whistleblowers have been strengthened over the years to include internal complaints to company management. In other words, a whistleblower does not need to file a complaint with the government to be protected from retaliation. A employee's complaint to a supervisor is also protected.

Usually an employee must be formally terminated to support a wrongful termination claim.  An exception known as "constructive termination" may also support a claim. A constructive termination occurs when working conditions become so intolerable that no reasonable employee would be expected to continue working under those conditions and is thereby forced to quit.  Where an employee faces intolerable harassment based on, for example, gender or sexual orientation, or a physical disability, and that harassment continues with the knowledge of the employer, an employee may have no option but to quit or resign their employment.  This "constructive termination" is the same as an involuntary termination or firing and gives rise to a claim for wrongful termination.

A wrongfully terminated employee is entitled to recover past and future lost wages and benefits, as well as emotional distress damages. Attorney's fees and costs are also recoverable. Punitive damages are available when the employer's conduct was particularly reprehensible.

It is important to know that in many cases an employer's conduct, while unfair, may not rise to the level of being unlawful. Many lawsuits have been filed without good results by employees who do not understand the difference between "unfair" and "illegal." For this reason we recommend discussing an employee's particular situation with an attorney to determine whether litigation or severance negotiation would be a better course of action.

Thanks to our experience and connections with law firms throughout the state and the nation, our clients enjoy small firm intimacy and easy access to their attorney with the added advantage of the best legal talent available. We get top results for our clients, often without the need for extended litigation or court appearances. 


Never a fee until we win your case.

Tel: 510-277-0191