Wrongful Termination

What Is Unlawful Retaliation at Work?

Unlawful retaliation at work is the denial of a job benefit or termination in response to an employee reporting discriminatory behavior or sexual harassment. Under both federal and California law, employers cannot base hiring and firing decisions on the membership of an employee or prospective employee in a protected class.

When an employee has experienced discrimination and they complain, they have legal protections against retaliation. Read on to learn more about unlawful retaliation at work and how an employment attorney can help you collect the damages that you deserve.

Federal Law Protects Employees from Discrimination

The federal government of the United States protects you from hiring or firing discriminatory decisions. Employment discrimination is determined by whether or not an employer unfairly treated an employee based on their membership in a protected class.

Employers cannot base employment decisions on the person’s age, gender, sex, disability, family history, color, race, or genetic information. You have protections from discrimination based on any of these characteristics, and if you believe you might have experienced such discrimination, you have the right to make a report.

Employers Cannot Terminate an Employee for Filing a Complaint Concerning Discrimination

Retaliation for reporting discrimination is unlawful. California protects its citizens from discrimination due to membership in a protected status and provides a reporting method to issue related complaints. Firing an employee in retaliation for making such a complaint is illegal.

Further understanding the protected class and statuses that have coverage under the law, the federal government and California can help identify whether or not you have a case. If you have a claim, the agency can issue you authorization to sue, and your attorney can file a lawsuit against the company.

Unlawful retaliation is not necessarily always a termination decision, but it can also be the denial of benefits or promotions on the job. If you believe you lost a promotion or particular benefits or opportunities because you reported workplace discrimination, you may pursue compensation for your lost value. Discussing the details with an experienced California employment attorney will help determine the scope of your case and ensure that you collect the most damages possible in any related settlements.

Discrimination Based on Sex Provides Expansive Employee Protections

Under federal law, employers are not allowed to make employment decisions based upon the sex of the employee. Sex in this context is an expansive term that covers not only the gender of the individual but also pregnancy status, gender identity, and sexual orientation.

When an employer has made a hiring or firing decision based upon one’s gender identification, sexual orientation, or pregnancy, you may be entitled to damages, which we can seek by filing a complaint with your employer and any relevant government agencies. If you are terminated or denied opportunities due to your reporting discrimination, you have experienced unlawful retaliation

Unlawful retaliation for reporting discrimination is illegal. Both the federal government and California support the reporting of discrimination and the enforcement of actions against those who unlawfully discriminate. Reaching out to a local employment attorney to discuss the facts and circumstances of your situation will determine whether you have a case for wrongful discrimination and if so, to make the most of your potential compensation.

Age Discrimination Protections Begin at 40

Employers cannot base hiring or firing decisions on age if they fall under the designation of a protected employee based upon their age. Federal equal protection laws take effect at forty years old. Employers cannot base hiring or firing decisions based upon an individual being aged forty or older.

Organizations can have minimum age requirements for employment and courts have upheld and age minimums for governmental positions. For example, states or employers can set a minimum age to begin a particular position, and in terms of government, the age minimum of thirty-five to serve a president is an example of an age-based employment decision that falls outside of the prohibition of not discriminating based upon being aged forty or older.

If you believe your employer terminated you because you complained about not being promoted due to your age or not receiving some other benefit or job accolade, you may seek damages. You have the right to file discrimination complaints, and employers cannot deny you benefits or terminate you based on discrimination complaints.

California Protects Certain Classes of Employees From Discrimination

In California, the Fair Employment and Housing Act (FEHA) applies to public and private employers, labor organizations, and employment agencies.

Under the FEHA, employers of five or more employees cannot discriminate against job applicants or employees because of a protected category or retaliate against a prospective employee or employee based on their asserted legal rights. FEHA prohibits the harassment of an employee based upon any protected category, and further, must also provide sexual harassment training to all supervisory and non-supervisory employees,

The employee has protections in California from the discriminatory practices of employers if the employer has five or more employees. In that case, the employee should contact an experienced employment attorney who understands how federal and state laws need to either provide for or fight against termination.

Discriminatory Termination Is Wrongful Termination in California

Under California law, an employee has a right to pursue a wrongful termination lawsuit against their employer if the termination was for a discriminatory reason. Besides discriminatory termination, firing an employee for exercising their rights or firing in violation of an employment contract may also give grounds for a wrongful termination claim.

In California, employees can pursue wrongful termination lawsuits even though California is an at-will employment state, which means employers can terminate employees at any time for no reason or any reason. However, even though California is an at-will state, state and federal laws prohibit employers from terminating employees for illegal reasons, including discrimination.

If you believe that your employer has fired you for a discriminatory reason—or any other illegal reason—do not hesitate to contact an experienced and results-driven lawyer to help defend your rights. A wrongful termination attorney will be ready to protect the rights of employees in Southern California against unfair employment practices.

Anti-Discrimination Protections Under Federal and State Law in California

Several federal and state laws in California prohibit workplace discrimination:

Both the federal Equal Employment Opportunity Commission (EEOC) and the California Department of Fair Employment and Housing (DFEH) handle discrimination complaints and discrimination-based wrongful termination claims.

Protected Characteristics Under Federal Law

Under federal law, employers can’t fire employees because of:

  • Race
  • National origin
  • Age (for employees aged 40 or older)
  • Sex
  • Sexual orientation
  • Pregnancy
  • Gender identity
  • Religion
  • Political affiliation
  • Physical disability
  • Mental disability

When pursuing a wrongful termination claim under federal law, an employee will bring a claim with the EEOC.

Protected Characteristics Under California Law

California law provides the strongest protection against employment discrimination in the United States.

In California, it is illegal to fire an employee because of their:

  • Religion or creed
  • Age (over 40)
  • Race
  • Color
  • Sex or gender
  • Ancestry
  • National origin
  • Genetic information
  • Sexual orientation
  • Mental or physical disability
  • Pregnancy, childbirth, or related medical conditions
  • Gender identity or gender expression
  • Marital status
  • Military or veteran status
  • Medical condition

When pursuing a wrongful termination claim under state law in California, an employee has to bring a claim with California’s DFEH.

What to Do if You Are Wrongfully Terminated in California?

If you think that your employer fired you for a discriminatory or an illegal reason:

  1. Consult an attorney to determine whether or not you have a right to pursue a wrongful termination claim against your employer; and
  2. Start gathering evidence related to your firing to prove that they terminated you for a discriminatory reason.

You should preserve all available evidence and documentation, including communications with your employer, to be able to prove wrongful termination. Your lawyer will review your particular situation and determine which types of evidence will be necessary for your wrongful termination case.

How Can You Prove Wrongful Termination in California?

The success of your wrongful termination case depends on the strength of your claim and the availability of evidence proving that you were fired for a discriminatory reason.

Typically, an employee needs evidence to prove that their firing constitutes wrongful termination:

  • Communications. Emails, text messages, and other communications with your employer, supervisor, or managers showing that you were subject to unjust or prejudicial treatment because of your protected characteristic;
  • Witness statements. If your coworkers will step in and provide their statements about what happened, you are more likely to prove that they fired you for a discriminatory reason.

While direct evidence is the most reliable type of evidence in wrongful termination and discrimination cases, you can also build your case on circumstantial evidence, which refers to a set of circumstances from which one could infer that an employer wrongfully terminated or discriminated against an employee.

Filing a Wrongful Termination Claim Under Federal or State Law

If you believe that your employer fired you for a discriminatory reason, seek legal counsel from an experienced attorney to determine if you should file a wrongful termination claim under federal or state law.

Filing a Claim With the EEOC

An employee who was discriminated against in the workplace because of their age, sex, national origin, race, sexual orientation, religion, pregnancy, gender identity, political affiliation, or disability (mental or physical) can file a claim with the EEOC before pursuing a civil lawsuit against their employer.

Under federal law, the time limit to bring an EEOC claim is 180 days unless the deadline can be extended. If your claim is successful, the EEOC will issue a Notice of Right to Sue. You then have 90 days to file a lawsuit after receiving the notice.

Filing a Claim With the DFEH

Alternatively, employees who were wrongfully terminated for a discriminatory reason can file a claim with California’s DFEH.

You may file a civil lawsuit in court instead of using the investigation process by the DFEH. Doing so is advisable only if a skilled lawyer represents you. If the DFEH issues a right-to-sue notice, the agency will not investigate your complaint even if you decide not to proceed with filing a lawsuit.

You have a year from the date of receiving the DFEH’s right-to-sue notice to bring a lawsuit against your employer. If your lawsuit succeeds, you may seek compensatory damages, punitive damages, and reinstatement.

If you are unsure whether you should file a wrongful termination claim with the DFEH or EEOC, consult with an attorney. A law firm can review what happened and advise you whether your employer and termination violated your rights under the law. If so, they will know how to best proceed to seek the legal relief you want and deserve.

How Do You Know if Your Termination Was Unlawful?

Losing your job can have far-reaching implications for your life that can be difficult to overcome with ease or as quickly as you might like. When an employer terminates you from a job, and that termination was unlawful, your employer denied you your ability to continue earning and support your family based upon an unlawful cause, and you may be entitled to compensation. Loss of employment impairs present obligations while also limiting future earnings and can also cause mental anguish given the related stress.

Following is a consideration of wrongful termination so that you know whether you might have a case. If your situation sounds familiar, reach out to a lawyer to explore the strength of your case and the size of your prospective settlement.

Discrimination Is a Common Reason for Wrongful Termination

If an employer terminates you based discrimination in any form, whether based upon your race, gender, disability, or religion, they have wrongfully terminated you. In such a situation, it can be difficult to clearly determine that it is due to one of these factors that you were, in fact, terminated.

Employers or supervisors may provide alternative reasons for your termination; reasons meant to mask over the true reason given that it might be discriminatory. Firing employees based upon a discriminatory reason opens employers to lawsuits, and some savvy managers understand this and do their best to mitigate the risk by providing other reasons.

Should you have been fired for reasons outside of your work performance, or if the reasons do not make sense, you may have experienced discrimination, and thus a wrongful termination. An attorney can help you understand how the law applies to your unique facts and circumstances.

FMLA Protects Medical Leave, and Your Employer Cannot Terminate You During Protected Leave

Under the Family and Medical Leave Act, as explained by the Department of Labor, employees who work for covered organizations are entitled to take a 12-week leave from work when a qualifying condition has occurred. The qualifying conditions are, broadly speaking, family, health, and bonding with a new child. The family and health aspect means you must attend to a personal health emergency or one for a family member.

The new child qualification means your family has had a newborn, adopted a child, or is within the first year of placement with a foster child. During the 12 weeks, your employer must continue to provide your group health insurance, and after the 12 weeks, your employer must give you your job back.

If you have lost your job for applying for your rightful FMLA leave, or you have been denied your health benefits during or your job after, you may have a case. Reaching out to an attorney to discuss the facts of your case will help you understand what claims you might have and the settlement you might deserve.

Retaliation Is a Common Form of Unlawful Termination

According to the U.S. Equal Employment Opportunity Commission, the EEOC, retaliation is the most frequently alleged basis of discrimination that employees report within the federal sector and the most common finding of discrimination in federal sector cases.

The law prohibits employers from punishing job applicants or employees by asserting their rights to be free of workplace discrimination, including harassment. Asserting an EEO right is described as a “protected activity” under the EEO, and employers cannot retaliate against employees for asserting their rights.

Whether you have filed a complaint yourself or participated in an investigation concerning someone else’s complaint, an employer cannot rightfully fire you based on this alone. The law empowers employees to participate honestly in workplace investigations.

Firing an employee because they were honest concerning the harassment of a supervisor would likely lead to ongoing harassment, given the lack of punishment. An employer is also liable if they facilitate or fail to act against the harassing behavior of their employees.

An Employer Cannot Fire You for Protecting Yourself or Others from Discrimination or Harassment

The law prohibits employers from retaliating against employees or applicants for asserting their rights through engaging in protected activities. Participating as a filer or witness in an EEO charge, complaint, investigation, or lawsuit cannot be a viable reason for termination.

Answering questions within an employer investigation of harassment, communicating to a supervisor or manager about employment discrimination or harassment, resisting sexual advances, or protecting others from them are all unlawful reasons for termination.

If your employed fired you for exercising your rights against discrimination in the workplace or tried to protect others, your termination might not have been lawful. To recognize whether or not you have a case and the size of any compensation you might deserve, speaking with an attorney can help.

How do I know if my termination was wrongful or illegal?

Generally, an employer cannot terminate you for asserting your protected rights in the workplace, such as filing complaints about harassment or trying to prevent a coworker from discriminatory behavior.

Can I be terminated if I have to leave work for a family health emergency?

If you have exercised your FMLA leave rights with a covered employee and your employer terminated you for applying, your termination was wrongful.

How do I know if my termination was due to retaliation?

While the unique facts of your situation will determine your case, frequently, if an employer fires an employee after they exercised a protected right like filing a complaint or honestly answering questions in an investigation, the termination was wrongful.

How much can I recover for a case of wrongful termination?

If you have experienced wrongful termination, you may be entitled to compensatory damages like lost earnings and potentially punitive damages.

Who do I file my wrongful termination lawsuit with?

If you are looking to recover damages or compensation for your wrongful termination case, the jurisdiction for the case will vary depending upon the facts and circumstances of your case, and an attorney can help advise you on your options.

Can I Be Fired For Complaining About a Lack of Safety Precautions At Work?

As we slowly transition from the new normal back to the old normal, we cannot forget that we are still very much in the midst of a global pandemic. Although cases have waned in California (for now), our state still tallies thousands of new cases every day. As we learned in June, this is not the time to throw caution to the wind.

Unfortunately, your employer might not feel the same way. Many people are coming back to work and finding that their employers are not following the Federal and State-mandated precautions. Although these workers don’t feel comfortable in such a dangerous work setting, they also don’t feel comfortable stirring the pot and risk losing their jobs. After all, their employers might already be struggling after months of shutdowns, and an added safety complaint might cause their employer to retaliate. Fortunately, employees who bring these safety concerns to their employer are protected from retaliation under California law.

California Labor Code §6310 prohibits retaliation against any employee who makes “any oral or written complaint to … his or her employer” relating to the employee’s health or safety.[1] Employees who prevail on a retaliation claim under §6310 are entitled to reinstatement and back pay, and these claims may be brought as a private right of action. Simply put, California employees can make complaints to their employers about health and safety concerns without fearing losing their job over this complaint. If they are terminated, they can file a lawsuit, and if successful, can be reinstated back in their position and receive backpay. Even if the complaint is not based on an actual health and safety violation, employees are still protected, so long as they complain in good faith about their working conditions.[2]

If an employee blows the whistle to a government or law enforcement agency, or anyone “with authority over the employee” regarding a safety violation under law, such as violating the State’s executive orders relating to COVID-19, workers are further protected from retaliation under California Labor Code §1102.5(b). Similarly, Labor Code 1102.5(a) prohibits employers from preventing their employees from disclosing safety concerns which the employee reasonably believes to be a violation of law.

California law provides many protections for employees who do not feel safe at work. While we all want to go back to normal, we must all recognize that COVID-19 is still here and we must remain vigilant. Fortunately, concerned employees are protected from retaliation.

Do You Need Legal Assistance?

Haeggquist & Eck, LLP is here to help employees fight for their rights if they experienced retaliation for speaking up about unsafe or unsanitary working conditions. If you were punished for speaking up about not feeling safe at work, especially within the context of the COVID-19 pandemic, we may be able to help you fight for fair and just compensation.

Reach out to our attorneys today for a free consultation by contacting us online or calling (619) 342-8000.

 


 

[1] See Cal. Lab. Code §6310(a)(1).

[2] Hentzel v. Singer Co., 138 Cal. App. 3d, 290, 299-300 (1982).

Can I Be Fired For Requesting an Accommodation To Take Care of Children Who Are Now At Home?

Under the newly enacted Families First Coronavirus Response Act (“FFCRA”), some employees are allowed to take up to 12 weeks of continuous or intermittent leave to care for their child because their child’s school has shut down and such employees cannot be fired for taking such leave.

The FFCRA requires private employers with fewer than 500 employees to provide employees who have been employed for more than 30 days with up to 12 weeks of Family Medical Leave Act (“FMLA”) leave if the employee cannot come to work, or telework, to care for a minor child whose school or child care is closed or unavailable due to COVID-19. Section 5104 of the FFCRA prohibits employers from discharging, disciplining, or discriminating against employees who take this type of leave under the FFCRA.

California law also requires employers who employ more than 25 employees to provide up to 40 hours of leave to parents, guardians, stepparents, foster parents and grandparents, who give advance notice to their employer, to care for their children during a “school emergency.” A “school emergency” includes when a child cannot return to school due to a “national disaster….” One could reasonably argue the pandemic qualifies as a “national disaster,” requiring an additional 40 hours of leave on top of the leave provided under the FFCRA. Importantly, California employers are prohibited for discharging or discriminating against their employees for taking this type of leave.

If Your Employer Has More Than 500 Employees

For employees working for employers with more than 500 employees, an employer is not required to provide a reasonable accommodation for an employee simply because an employee’s child’s school is closed under the FFCRA. While Federal and California law require employers to provide reasonable accommodations for pregnant or disabled employees, an employer is not required to provide a reasonable accommodation for employees to take care of their children just because schools or daycares have closed. Accordingly, there are no legal grounds to request this type of “reasonable accommodation” and therefore the law does not protect employees from being fired for requesting this accommodation.

If, however, an employee’s child suffers from a serious medical condition, where the parent must stay home to care for the child’s condition, the employee may be able to request an accommodation under the FMLA or under California’s Fair Employment and Housing Act (“FEHA”) based on the employee’s association with her disabled child.

Do You Need Legal Assistance?

If you have any questions about your specific rights to leave, please feel free to contact Haeggquist & Eck, LLP for more information and to arrange a free consultation with one of our attorneys.

Get in touch with us today by filling out our online contact form or calling (619) 342-8000 for help.

Can I Be Fired For Joining the Black Lives Matter Protests?

Assuming you did it on your own time, the answer is no. Employees cannot be fired because they joined the Black Lives Matter protests, or for any other political activity in which they participate.

At the Federal level, and in many states, political affiliation is not one of the traditional “protected classes” of anti-discrimination law. California, however, is among a minority of states that protect political affiliation and activity from workplace discrimination. Although California’s Fair Employment and Housing Act does not prevent employment discrimination on the basis of political affiliation, under California Labor Code §§1101 and 1102, employers may not interfere with or control employees’ political activity.

California’s law protecting political activity dates back to the New Deal era and the organized labor movement, which was growing in political power at that time. But the law is not limited to protecting labor activism and organization. The California Supreme Court has interpreted the law expansively in the intervening years. Under the law, banding together with others in support of a cause can be protected “political activity”; as could expressing support for political reform by a symbolic gesture, such as wearing a pin or an armband, or displaying an appropriate banner.

Based on this interpretation of the law, an employee would be protected from retaliation for marching in a Black Lives Matter protest on his or her own time. The employer could not discriminate against the employee for tweeting about the movement; or for discussing the movement with coworkers during an employee’s rest break. If the employer’s dress code allows t-shirts, the employer could not discriminate against an employee who wore a Black Lives Matter t-shirt to work, and the same goes for pins, posters, or other emblems of the movement. An employee probably cannot walk off the job in order to protest, but if the political activity is otherwise lawful and doesn’t interfere with the employee’s work, it should be protected.

Moreover, because the United States and California Constitutions both protect the right of the people to peaceably assemble and petition for a redress of grievances, terminating an employee for participating in a Black Lives Matter march might also violate the common law prohibition on terminating employees in violation of public policy. If your employer retaliates against you after finding out you joined in the Black Lives Matter protests, contact an employment attorney to protect your rights.

Of course, other, more conventional political activity is protected as well, and actions short of outright termination might also violate the law. For example, an employer could not prevent an employee from wearing a “Feel the Bern” t-shirt, assuming a t-shirt is otherwise allowed by the employer’s dress code. A manager cannot ridicule an employee for being among the tens of thousands of Americans who cast protest ballots for Mickey Mouse or Santa Claus. Without question, an employer cannot fire or threaten to fire an employee because that employee supports a particular cause or candidate. Similarly, an employer cannot refuse to hire a person based on that person’s political beliefs or affiliations.

In an extreme case, where political affiliation discrimination turns violent, California’s hate crime law, known as the Ralph Act, may offer employees even further protection. In California, verbal or written threats of violence, physical assault, graffiti, vandalism, and property damage can be considered hate crimes if motivated by, among other reasons, a person’s political affiliation. If

workplace discrimination on the basis of political affiliation turns violent, or potentially violent, an employer could be liable for failing to act on reports of workplace conduct that would violate the hate crime law.

If you think your employer’s actions may violate California laws protecting political affiliation, you should contact an experienced employment attorney who can assess your situation and advise you on how you might protect your right to political affiliation.

To schedule your free initial consultation, contact us online or call (619) 342-8000 today!

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