Legal Question in Employment Law in California
Unfair dismissal
I was employed by company as a Sales Manager for the last 21 months. Last week the senior telemarketing person left the company's employ, leaving the telemarketing department in a mess.My sales team and myself all rallied together to set appointments for the company so that the sales team would have people to sell our product to. Appointments were set from direct mail responses sent in by prospective clients. Yesterday I was dismissed for not being aggressive enough with the telemarketing department.No written or verbal warning was ever given to me. Telemarketing was out of the bounds of performance for the job I was employed to do, namely Sales Manager. Do I have any recourse in terms of loss of earnings now that I am unemployed? Where would I go to establish such recourse if I am entitled to it? Should I not have been given both verbal and written warnings prior to my dismissal? What compensation would I be entitled to, if any? Only last month the owner told me how happy she was with my performance. Please help.
1 Answer from Attorneys
Re: Unfair dismissal
As an attorney who's practice consists of 50% employment law / wrongful termination cases, this is the issue I spend 75% of my consultation time answering. The answer is in the title to your question, "Unfair dismissal."
"UNFAIR" DOES NOT EQUAL "ILLEGAL."
In California, the GENERAL rule is that anyone can be terminated without cause or reason unless:
1) You've been fired or discriminated against because you belong to a protected class of workers, including, but not limited to: racial minority, disabled, over 40, sex, sexual orientation, being pregnant, being a "whistle blower" (reporting illegal conduct by the company or one of its managers), etc.
2) The other reason prohibiting you from termination without cause, or possibly progressive discipline, is that you have an employment contract which requires "good cause" or your company has an employee handbook or Policies & Procedures" manuel that requires warnings, probation, write ups, etc., before you can be fired. The contract provisions protecting you can be express, i.e. written, oral and implied by conduct. Some statement like "Jill, you can work here as long as you keep up your good work," form an oral and implied contract that you'll only be terminated for poor performance. In your case, if you had a written contract, which can be something as simple as an offer letter, which states that you were hired for one position, and you ended up having to do another job, may be enough to protect you. In these types of cases, the facts of each case are critical and I would need to know much more than what you've supplied.
The main problem that I run into in termination cases, is that UNFAIR doesn't equal ILLEGAL most of the time, no matter how unreasonable the boss's behavior or reasons for your termination are.
So if they promise it to you, get it in writing. Understand what the company's policies are before you take the job.
If you live in Santa Clara County and/or the Silicon Valley, I've been handling these cases for over 15 years. Call for a consult, 80% of which are free, at (408) 295-8282
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