Losing a job under any circumstances can be a traumatic experience -- especially if you have devoted a number of years to a particular employer. When the reason for losing a job is a legitimate one, the blow is softened. But when an employer terminates an employee unjustly, the adverse impact can be far-reaching. Anger, humiliation, and worry predictably follow -- together with many sleepless nights. What next? Can you fight back? Should you?

The first question is: do you have a potential legal claim? Whether to act on it or to let go of it is a different question.

It surprises many working people in California to learn that there is not always a remedy even when a wrong has occurred -- in other words, not every injustice is a violation of law. And a legal remedy is available only for violations of law. Management decisions may be bad or unfair -- and ultimately limit a company’s success -- but may not be unlawful.

“At-will” employment is still the law in California. An employee hired for an indefinite term can be discharged at the will of the employer -- with or without notice, and for good or bad reasons or for no reason at all. Employees with written contracts of employment for a specified term, or requiring that termination be for “good cause,” are not “at-will.” And employees who are covered by a Union contract are also not “at-will.” See Labor Law/Unions.

Over the years, the California legislature and the courts have created exceptions to the harsh results of the at-will rule, making certain terminations wrongful.

Here are the most common examples of wrongful terminations:

• The employer is motivated by discrimination or retaliates against an employee for opposing discrimination. See Age/Race/Sex Discrimination, Sex Harassment and Disability/Pregnancy Discrimination.

• The employer is motivated by a desire to retaliate against an employee:
---- who complained in good faith about
---- unsafe working conditions
---- who refused to perform an illegal act,
---- like price fixing or giving false testimony
---- who was a whistleblower by disclosing
---- information to a government or law
---- enforcement agency
---- who was an internal whistleblower by
---- making his/her employer aware of
---- illegal activity on a matter affecting
---- the public interest
---- who was injured on the job.
---- See Workers’ Compensation.

•The employer’s real reason for the
termination violates a public policy which is
---- fundamental,
---- beneficial for the public, and
---- embodied in a statute or
---- constitutional provision.

• The employer’s conduct in terminating an employee results from a serious invasion of a legally protected privacy interest when the employee had a reasonable expectation of privacy.

• The employer terminates an employee without good cause when the employer had promised, by words or conduct, to discharge the employee only for good cause.

• The employer terminates an employee who is absent from work on a protected leave or because he/she requested or took such leave -- for example, under the California Family Rights Act or under the
Pregnancy Disability Leave Act. There are exceptions and defenses. See Disability/Pregnancy Discrimination.

Employers may also be held accountable for the harm they cause when they violate employees’ rights protected by other laws:

---- Discharging an employee who refuses to
--- -take a polygraph examination or other lie
---- detector test.

---- Discharging an employee for engaging in
---- political activities.

---- Blacklisting former employees, whether
---- they quit or were discharged, by using
---- misrepresentations to prevent or attempt
---- to prevent them from obtaining employment.

---- Making misrepresentations -- statements of
---- fact known to be false at the time made --
---- about a job or the compensation to be
---- paid in order to induce a person to
---- relocate to accept it.

What If Your Employer’s
Conduct Forces You To Quit?
Under certain circumstances, an employee who is “forced to quit” has a legal claim for constructive discharge. In general, for a seemingly voluntary resignation to be treated as a “discharge,” the employee must have been required to endure intolerable working conditions associated with the employer’s violation of a statute or a public policy. But when an employer demands a resignation in lieu of being fired, this will be treated as a discharge not a constructive discharge.

You Have A Duty To “Mitigate” Your Damages
Even when you are the victim of a wrongful termination, you have a duty to mitigate the damages caused -- meaning to minimize the resulting damages by making reasonable efforts to get and keep comparable replacement employment.

Case Evaluation
If you believe that you have been wrongfully terminated, you need the advice of a competent, qualified attorney who specializes in Employment Law who can:

• Review the details of what happened.
• Identify whether a violation of law has occurred.
• Determine if there are credible witnesses and evidence to prove it.
• Consider the effect of any internal grievance procedure or agreement to arbitrate.
• Evaluate the provable damages.
• Help you decide whether to sue, improve on a severance offer being made, or simply close this
unhappy chapter in your life and move on.

All litigation costs money and causes stress to the parties involved. Not every wrongful termination can be effectively remedied in a court of law. And not every wrongful termination causes enough damage (even if the harm feels immense at first) to justify the high costs associated with litigation.

You are not alone. See how we will help.

Ann M. Smith
Position: Partner
Admitted to Bar: 1985, California and U.S. District Court, Southern District of California; U.S. Court of Appeals, Ninth Circuit.
Education: Simmons College; Monterey College of Law (J.D., cum laude, 1985).
Of Note: 1993 Recipient, Outstanding Trial Lawyer Award, San Diego Trial Lawyers Association. Labor Negotiator for United Farm Workers of America 1976-1981 and for San Diego Municipal Employees Association 1986--.
Member: Consumer Attorneys of California, Consumer Attorneys of San Diego, San Diego County Bar Association, and State Bar of California.
Languages: Spanish.
Reported Cases: Salgado v. Atlantic Richfield Co. (9th Cir. 1987) 823F 2nd 1322. Branch v. Homefed Bank (1992) 6 CA. 4th 793.

Jon Y. Vanderpool
Position: Partner
Admitted to Bar: 1992, California; 1995, Massachusetts; and U.S. District Court, Southern, Central, and Northern Districts of California.
Education: Rice University (B.A., 1986); Pepperdine University (J.D., 1992).
Member: American Inns of Court, San Diego County Bar Association, and State Bar of California.