WRONGFUL TERMINATION

Our firm represents employees who have been wrongfully terminated or wrongfully forced to resign from their jobs.  While each case must be evaluated on its own facts, there are some common legal issues that merit reference.

Employment in California is generally regarding as being “at will” absent a contract between the employer and the employee from employment for a specified term or an agreement not to terminate the employment other than for “good cause.”  In today’s world, very few employees that are not at a high management or executive level are given contracts of employment for a specified term.  Most employees are instead treated as “at will” employees, subject to termination even in the absence of “good cause.”  This has led to an often cavalier approach on the part of the employers many of whom believe that the ability to terminate even adequately performing employee is limitless.  As they may find out in court, it is not.

“Implied contract”: Under certain circumstances the law will imply that a contract in fact has been created between an employer and employee not to terminate the employee other than for good and reasonable cause.  Some of the factors used to determine the existence of such an implied contract are:

1. 1.representations made at the time of hiring that the employment was to be long term, that job stability was one of the benefits of hiring on, that compensation would be on a yearly or greater length of time with potential for promotion and advancement if performance was satisfactory, and that the company retained its good employees and did not terminate those who performed satisfactorily
   

2. 2.ongoing promotions and representations by management that the employee was performing in a satisfactory manner and on track to enjoy continued employment and advancements
   

3. 3.the custom and practice of the company evident to all employees that continued employment would ensue if an employee performed in a competent and satisfactory manner
   

4. 4.the employee’s length of service to the employer
   

5. 5.the employee with the knowledge of the employer having foregone other employment opportunities in reliance on the employer’s representation that competent and satisfactory completion of job duties would result in continued employment and advancement. 
   

Of course, many employers now have employees sign employment agreements that specifically reference that the employment is “at will” - this will usually prevent the employee from successfully asserting the existence of an implied contract of continued employment.

“Good cause” for termination may take many forms but generally involves the employee’s failure to perform in an manner consistent with the announced and reasonable job requirements set forth by the employer.  This could range from outright wrongdoing on the employee’s part (misappropriation of company property, fraudulent expense reports, violation of confidentiality provisions as to company trade secrets, etc.)  The existence or absence of “good cause” is only an issue if the employee gets past the “employment at will” doctrine and can show an implied contract for continued employment.  It is a question of fact usually resolved by reference to job evaluations, documents, and witnesses testimony.

“Protected categories”: Despite the general rule of “at will” employment, and even in the absence of an implied contract for continued employment, an employer is not free to terminate an employee based on certain impermissible grounds.  These include race, religion, national origin, gender or sex, or disability.  If the employee can demonstrate that a termination was based on one or more of these improper criteria the burden then shifts to the employer to demonstrate the existence of a legitimate basis for the termination, i.e. that the termination was based on good cause not on one of the improper discriminatory reasons referenced above.  Again, this is a fact specific inquiry.  Evidence will focus not just on what management level company representatives said, but also on the custom and practice of the company in its dealings with other employees in protected categories.  Almost all companies have policy manuals that disclaim any discrimination or other improper employment practices.  The test is not what the company puts in its manual, but how the company and its management actually operates and conducts business.

“Hostile work environment and harassment”:  Employers are not allowed to create a work environment that is, under standards of reasonableness, so hostile that an ordinary person in a similar industry would view it as incompatible with the normal functions of the job.  Similarly, employers are prevented from either directly, or by failing to adequately supervise, either perpetrating or allowing the perpetration of harassment in the work place.  When a hostile work environment or on the job harassment reaches the point where a reasonable employee would not be able to continue in such an environment it will create a basis for the employees resignation which can be viewed as a “constructive termination.”  In other words, when things get to a sufficiently intolerable level the employee may be viewed as having to resign or terminate the employment relationship not out of an objective choice of employment but because of the improper and wrongful conduct either perpetrated or allowed to exist by the employer.  If you are in such a situation there are several things that should be done:

1. 1.go to your employer and in a very clear and specific way document the instances of harassment or hostile environment and give the employer an opportunity to correct the situation
   

2. 2.keep detailed notes of the specifics of the situation so that later if necessary you can recount the details, the circumstances, dates, times, witnesses
   

3. 3.if the situation does not significantly  improve it is probably a good time to consult an attorney - at that time, with the assistance of counsel, you can decide on appropriate steps such as making an administrative claim with the proper governmental enforcement agency, or commencing legal action.
   

Recovery of damages:  In an action for wrongful termination you may seek reinstatement or damages.  Often reinstatement is impractical for a variety of reasons including the inability to return to a hostile work environment or the hiring of replacement employees.  Damages for wrongful termination may include “back pay” (wages and benefits you would have earned but for the wrongful termination up to the date of trial), and “front pay” (wages and benefits you will lose in the future).  Damages may also include in appropriate cases recovery for physical and emotional distress caused by the employers wrongful conduct.  However, an employee has a duty to mitigate damages and cannot simply sit back and wait for a lawsuit to be prosecuted.  Replacement employment must be sought.  If found, the earnings and benefits from the new job will serve to offset some or all of the damages discussed above to the extent the replacement employment is at a compensation level equal  to or greater than that of the job from which the employee was terminated.  Finally, if the conduct of the employer is shown to be malicious, oppressive or fraudulent and in conscious disregard of the rights and welfare of the employee then punitive damages may be available.