Employment Law FAQ

How does the California Supreme Court describe wrongful termination?

Wrongful termination is an exception to the at-will employment doctrine. It was first recognized by the Supreme Court in a decision called Foley v. Interactive Data Corporation. Here is the Court discussing the seminal Foley case in its more recent decision in Green v. Raley (1998) 19 Cal.4th 66 at 75-80:

“In Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 669, 254 Cal.Rptr. 211, 765 P.2d 373 (Foley ), we underscored the term “public” in Tameny’s public policy exception by observing that the employee’s actions must further a policy affecting the public interest, which must be fundamental or substantial when the company discharges the employee. (Foley, supra, 47 Cal.3d at p. 670, fn. 11, 254 Cal.Rptr. 211, 765 P.2d 373).”

So what does the California Supreme Court require in order to recognize the public policy tort of wrongful termination?

The employee’s termination must involve a policy affecting the public interest that is fundamental or substantial. It must also “affect society at large” rather than just the individual.

Some examples include firing an employee for asserting workplace safety complaints, workplace complaints about unfair wage payment practices, complaints of discrimination and complaints that a company is defrauding the government (i.e., cheating on government contracts).

Employees improve their chances of substantiating their wrongful termination lawsuits by remembering to register their workplace protests in writing when they are first made. This makes it more difficult for the employer to later deny that the employee ever made the claimed protest. Copying high-level supervisors and human resource officials on e-mails is perhaps the best way to ensure a company cannot later pretend that they were unaware of the employee protest.

What is “at-will” employment?

This term causes a lot of confusion among California employees. Most California employees believe that it means that you can be fired “for any reason.” This is true, within limits, because you CANNOT be fired for an unlawful or wrongful reason even though you are an “at-will” employee.

Moreover, even as an at-will employee you cannot be fired because of your race, ethnicity, gender, sexual orientation, religion or other protected characteristic, such as age or disability.

You cannot be fired in retaliation for requesting or taking qualified medical leave because of a serious health condition and/or disability. You cannot be fired because you are a whistleblower who protested or refused to engage in a company’s unlawful actions. There are many other exceptions to the at-will rule.

What is “wrongful termination”?

Wrongful termination means you have been fired unlawfully. In California, there are many impermissible or unlawful grounds for termination, including: whistleblowing (reporting certain types of wrongdoing by the company); discrimination based on race, gender, ethnicity, age or disability, pregnancy; retaliation for or interference with certain medical leaves; and abuse and mismanagement of medical and disability leaves in particular.

You cannot be fired for complaining about wages or asking for overtime, requesting an accommodation for your disability, requesting protection from sexual harassment, requesting a qualified medical leave, or complaining about unsafe working conditions. You cannot be fired in retaliation for filing a worker’s compensation claim. The Labor Code includes numerous other examples.

What is a “hostile work environment”?

This term causes a great deal of confusion. It is not what it appears. Rather than simply denoting an environment characterized by anger or hostility, it is much more specific.

The “hostility” must be tethered to a protected category such as race, sex, age, disability, ethnicity, sexual orientation and so on.

For example, there is a form of sexual harassment that involves sufficiently severe or pervasive leering and/or speech or even physical touching — such that it forms “a hostile work environment” based on sex. But an employer who is just angry or grumpy — without the comments or actions being tethered to race or age or sex or ethnicity (or other protected category) — is not engaged in conduct that can be the subject of a lawsuit.

Moreover, it is not against the law for a manager to be a jerk, if that is where it begins and ends. It is worth noting that the actionable hostility (which constitutes a legal violation) can take various forms, depending on the protected category involved.

For example, asking someone with a disability for a medical note covering an absence probably is not an act of harassment — unless you send the person back repeatedly for additional notes no matter how detailed or appropriate the initial medical authorizations may be, in an effort to marginalize the person and push him or her out of the job.

In a recent and important California Supreme Court case, the justices ruled that evidence of discrimination might also be evidence of harassment (hostile work environment) and that the same evidence could potentially substantiate both types of claims. This case broadened the universe of activities that might be regarded as forming an unlawful hostile work environment.

Who is a Whistleblower?

We have all heard of famous whistleblowers such as Jeffrey Wigand (tobacco companies), Sherron Watkin (Enron) or Mark Whitacre (Archer Daniels). Yet whistleblowing is much more widespread than just these high-profile examples might lead you to believe.

In its broadest sense, a whistleblower is anyone who reports within her company to management or outside her company about wrongdoing or unlawful behavior by the company and is then fired or demoted or mistreated by the company.

It can be anyone who refuses to engage in unlawful behavior and is then punished, usually by being fired. Today, we have many statutes in California and across the federal government protecting whistleblowers depending on their industry and employment, and the nature of their whistleblowing (i.e., what they are reporting and to whom).

Generally, if you report unlawful behavior internally to management, and are then fired, you would be a whistleblower with a legitimate claim. If you report unsafe work conditions and are fired for it; or financial fraud or fraud against the federal government, you would qualify.

There are numerous federal laws, such as the Sarbanes-Oxley Act and Dodd-Frank Act, that provide for substantial protections and rewards for qualifying whistleblowers. The range of activities and reports is as wide and varied as anyone can imagine. Below are some further examples:
– A truck driver who is terminated because he refuses to deliver spoiled milk.
– A sales representative who is fired for refusing to participate in an illegal gasoline price-fixing scheme.
– A manager who is terminated for refusing to engage in racial discrimination.
– A city building department employee who is terminated for refusing to allow certain city officials to conduct residential construction without proper permits.
– An insurance claims handler who is fired for refusing to accept cases that would result in a larger caseload than the Department of Insurance guidelines allow.
How long can I go out on leave for my pregnancy?

“It depends. An employee disabled by pregnancy may generally be entitled to up to four months disability leave.”
And if the employer provides more than four months of leave for other types of temporary disabilities — then the employer must make the same leave period available to women who are disabled due to pregnancy, or childbirth itself, or a related condition.

And the leave can be taken before or after birth — basically during any period that the women is disabled due to pregnancy or a pregnancy-related condition. Additionally, an employee may take any leave entitlement under the California Family Rights Act (“CFRA”). For example, a woman might take some four months disability leave for her pregnancy disability, and an additional 12 weeks CFRA leave to bond with her baby.

Can I return to work after my pregnancy leave?

When the pregnancy disability leave concludes, employees are guaranteed a return to the same position. Notably, if the position is no longer available (e.g., because of plant closure), an employer must offer a comparable position, unless it can prove that none exists.

What is job misclassification for purposes of unpaid overtime?

Many California employees believe that whether they are paid overtime or salary is at the discretion of their employer. In fact, there are highly detailed laws that govern this process. Frequently, employers will disregard these laws, sometimes because they are unaware of them, oftentimes because it simply works out to their advantage to do so (willful ignorance).

In all events, you might be called a “manager” and placed on a salary not earning overtime when in fact you do not manage employees or spend less than 50 percent of your time doing so. In that event, you would have a valid claim for unpaid overtime.
You might be involved in inside sales earning less than 50 percent of your income from commission, and yet mistakenly be paid on a salary basis, not earning overtime for overtime hours worked. This would also give rise to a claim for unpaid overtime.

“The examples are numerous and widespread. Similarly, you may be correctly classified, but forced to work “off-the-clock” extra uncompensated hours. All of this is illegal and should not be tolerated.”

What is “accommodation” of a disability? May “medical leave” be an accommodation?

When your doctor gives you restrictions to be followed at work (e.g., no lifting greater than 25 lbs.), then it is up to your employer to determine if it can “accommodate” your restrictions. This should entail an analysis of your job to determine if, for example, lifting more than 25 pounds is merely a “marginal” function or an essential function.

If your restriction cannot be accommodated in that way, but the problem is transitory, you can take medical leave.

For example, let’s say you need to lift more than 25 pounds as an essential job function, but your bad back will heal in six months to enable you to do that again. In that event you would require six months medical leave as an accommodation for your disability — the bad back (that is a disability because it limits a major life activity such as working).

You need to give your employer a certain date for your return (even if the date is later moved). And if the employer cannot accommodate your leave or other restriction, it must demonstrate an “undue hardship” to its business.

Also, before simply refusing to accommodate you, an employer must enter into a true interactive dialog to see if some form of mutually acceptable accommodation can be arranged. An employer does not have to accept your proposed accommodation, so long as it proposes an alternative that is a reasonable accommodation if one is available.

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