Legal Question in Employment Law in California

California is an employment-at-will state. That means that any employer can take an adverse action, including termination, against an employee at any time for any reason that is not against the law or discriminatory.

An adverse employment decision that is against the law would be, for example, terminating an employee in retaliation because the employee filed an OSHA complaint.

A discriminatory reason would be one based on race, color, religion, sex, national origin, disability, genetic information, or age. Here is an Equal Employment Opportunity Commission publication explaining illegal discrimination: http://www.eeoc.gov/facts/qanda.html. California also prohibits discrimination based on pregnancy, filing a workers� compensation claim, and sexual orientation.

There are exceptions to employment-at will. Those are:

1. An employment contract. In California, an employment contract does not necessarily have to be in writing. It may be implied by the actions of the employer, or what the employer says. If you had a written contract with your employer that the employer breached, then you may be able to sue.

2. An employment manual that states employment is not at will, or that certain procedures must be followed to terminate an employee. If you had an employment manual with your employer that required the employer to follow certain procedures and they did not, then you may be able to sue.

3. A union agreement.

4. In California, there is a good-faith exception as well, which means that in the termination must not be made in bad faith or maliciously. A bad faith or malicious reason for termination would be, for example, making up allegations that an employee stole money in order to terminate the employee.

5. In California, an employee may not be terminated for reasons in violation of California�s public policy � such as termination for pregnancy.

6. There may be additional exceptions that apply to public employees, such as police officers and employees of government agencies.

A �hostile work environment� is related to the issue of discrimination and retaliation. A �hostile work environment� arises when an employee is harassed in the workplace because they are in a protected class, or in retaliation for filing a complaint. A prime example of a hostile work environment is in the movie North Country, where a woman working in a mine was subjected to sexual taunts and assaults because she was a woman. (A �hostile work environment� does not happen just because a workplace is awful to work in, or an employer is unreasonable, arbitrary or capricious � the bad treatment has to happen because of discrimination or retaliation.)

If you think the adverse employment action was discriminatory, here is a link to the EEOC website for more information: http://www.eeoc.gov/ explaining discrimination. California discrimination complaints are made to the Department of Fair Employment and Housing (DFEH) at http://www.dfeh.ca.gov/DFEH/default/. Your complaint must be filed with the DFEH within a year of the discrimination!

If you think the adverse employment action was wrongful but not discriminatory (for example, your employer did not follow its manual), a government agency cannot help, but an attorney may be able to help.

If the adverse employment action violated a Union agreement, you need to work with your Union representative first.

Besides the wrongful termination potential if any of the exceptions may apply, (I ususally ask why do you believe you were fired-to analyze a case). You need to apply for unemployment benefits and appeal when they are denied because of the employers claim of insubordination. Contact me directly.