AT-WILL EMPLOYMENT INFORMATION SITE
STATE OF CALIFORNIA
MORRIS & STONE, LLP -- ORANGE COUNTY, CALIFORNIA
Answer: If you are an at-will employee, you can be fired or demoted on a whim, without warning, with no due process, for no reason at all, or even for a false reason.
The following should not be taken as legal advice. Every "rule of law" has nuances and exceptions. We offer this information to give you a better understanding of the concept of at-will employment, so that when you do consult with an attorney, the conversation will be more efficient and productive.
Of all the legal concepts that impact the lives of average people, the concept of at-will employment is perhaps the most misunderstood. This site is devoted to explaining this important legal concept. If you take a few minutes to review the information contained here, you will not only be better equipped to analyze the employment situation that likely brought you here, but you will be better informed to make decisions about your future employment arrangements.
Yes, you do have a contract.
First, a little background. A contract is formed when there has been an offer by one party, and an acceptance of the terms of that offer by another party. When you are employed by someone else, you are subject to an employment contract.
This is the first concept many people don’t understand. If you ask someone if they have an employment contract, they will invariably say no. Every employee has an employment contract. The contract may not be in writing, but it exists nonetheless. The employer offers to pay a set amount for a given service, and the employee accepts. That is a contract. So, if you are working for someone else, first understand that you have a contract.
As with any contract, there are terms to your employment agreement, both express and implied. The employer said you would work eight to five, get an hour off for lunch, have a great dental plan, and would be paid $4,500 per month. Those are “express” terms – those terms that are actually stated in the written or oral contract. The “implied” terms are those that are a natural part of the contract, even if you never discussed them. No contract can cover every possible contingency, so many of the terms must be implied under a reasonableness standard. In the context of your employment agreement, even though you never discussed them when you were hired, it would be safe to say that the implied terms of the contract include such items as you will not be required to do anything illegal, that you will show up to work wearing clothes, and your employer will not pay you with old Confederate dollars from the Civil War. Like any contract, you and your employer are bound by the terms of the contract, both express and implied.
Congratulations, you're fired!
So, one day you show up at work wearing a fish tie, and your boss fires you for dressing inappropriately. You of course are outraged, because you have received nothing but compliments regarding your fish tie, and your employer never told you about any anti-fish tie policy. So you run to an attorney screaming “wrongful termination.”
Here is the simple rule, and it may challenge your fundamental understanding of employment. If there is no agreement to the contrary, an employer does not need any reason to fire you. You can be fired on the complete whim of your employer. This is called “at-will” employment. Just as you are free to leave a job whenever you please, the employer can fire you whenever he, she or it pleases. This also applies to demotions, which the courts view as a lesser form of termination.
When we explain this to people, we often get stunned silence. It is so contrary to what they believe, they are certain we must be mistaken. For the person’s entire working life, they had proceeded under the assumption that so long as they showed up at work and did a good job, they could not be fired. Having been fired for what they consider a trivial reason, they assumed there would be recourse through the courts. And there we are, taking away that cherished belief.
It's a simple case of tit for tat.
Think of it this way if it helps you to cope. Imagine that you've been working at a job for a few months, and a much better opportunity at a different company comes along. You accept the new position, and then go into your supervisor's office to give your two weeks notice. He listens politely, and then states, "No, that's not going to work for us. We really need you here, and we can't afford to train someone new, so you call that other employer and tell them you can't take the job. I promise, though, we'll take another look at the situation in a few years and see if we can let you go then. We've paid you every week and done nothing wrong, so it's not fair that you are trying to leave. And if you do leave, we'll sue you for wrongful quitting."
Bizarre, of course. No one ever thinks in terms of the employer being able to keep you from leaving, but why is it any less strange to assume that an employer must keep you once they decide they no longer want you around? If you are free to terminate the arrangement whenever you want, shouldn't that be equally true for the employer? It is actually very strange that most people think they have a right to force themselves on an employer after the employer no longer wants them.
Now, if you have an actual contract for a given period of time, that's a different situation. If you go to work for a company and sign a five-year agreement, then it would be a breach of the agreement if your employer tried to fire you before the end of the term. In that circumstance, your employer would need "good cause" to fire you during that year. Also, some people have agreements that specifically provide that they can only be terminated for cause. These are usually people that belong to unions, government employees, teachers and others. But under California law, an employment agreement that is not for a specific period of time is deemed to be at-will. The vast majority of workers are at-will employees.
"So how can you ever sue for wrongful termination? Do I have any protections?"
OK, a little more shebang. You could have a contract action.
If your action does not meet one of the above criteria, your termination could constitute a garden-variety breach of contract action. Even if your contract is silent on the issue of termination, your employment agreement (remember, you DO have a contract) may have an implied or express term that prevents you from being terminated without cause. We have represented a number of employees that were wooed away from long term employment by employers that promised they would be "employed for life." Under those circumstances, the courts found that our clients were not at-will employees and the terminations were therefore a breach of the agreements.
Repeat this to yourself over and over like a mantra. Write it down and tape it to your bathroom mirror. Have a subliminal CD made and listen to it while you sleep. Turn it into a screen saver for your computer. If all of that doesn’t work, have it tattooed on your arm (perhaps encircling a nice skull and crossbones).
There are few absolutes in life – this is one of them. If you think you know of an exception, you are wrong. Every week I receive calls from terminated employees who thought they were safe. Thirty-year employees, union workers, family members of the boss, government employees, tenured professors, even people who had started the company (Steve Jobs, who founded Apple, was fired from his own company) – they all thought they were safe. They all found out they were wrong.
The reason in most cases is the at-will employment presumption that exists in California. That presumption comes from a statute that is deceiving in its simplicity. Labor Code section 2922 states:
"An employment, having no specified term, may be terminated at the will of either party on notice to the other. Employment for a specified term means an employment for a period greater than one month."
The wording of the statute is simple and clear. If there is no agreement for a specified period of time, then either party can terminate the agreement. The employee doesn't have to ask permission to leave, and the employer doesn't need a reason to terminate the employee.
Note also that this is the automatic presumption. Many companies require employees to sign a document wherein they acknowledge their awareness of the at-will rule, but no such document is required.
Here are some examples that illustrate the scope of at-will employment and demonstrate why you are never save if you work for someone else:
The Case of the Smoking Employee
Maria wanted to stop smoking, but smoking seemed to provide the only release from her hectic life. To anyone that gave her grief about her smoking, she would simply say, "I can smoke or use drugs, and as vices go, I guess I’d rather smoke."
Maria worked in an office building where smoking was not permitted, so she could only smoke on her breaks and had to leave the building to do so. Most of her fellow smokers would congregate around the back door to smoke their cigarettes, but Maria preferred to sit in her car and listen to music on the car radio during her 15 minute breaks. One day, as she had done dozens of times before, Maria was sitting in her car smoking a cigarette during a proper break. This time, however, the owner of the business happened to look out the window and saw Maria smoking in her car. For some crazy reason, and with no basis for jumping to such an absurd conclusion, the employer decided that Maria was smoking marijuana, and fired her the moment she returned from her break.
A clear case of "wrongful termination," correct? After all, Maria did absolutely nothing wrong, and there was no reason for the employer to fire her. That was what Maria and her attorneys thought, and at the subsequent trial, Maria proved beyond dispute that she had not been smoking marijuana, and therefore should not have been fired. The jury agreed and awarded her almost a year’s worth of wages as damages. Good for Maria; you go girl!
But that was not the final word. Although the jury found in her favor, the California Court of Appeal reversed the verdict, and she ended up with nothing. Why? Again, you must think in terms of the at-will rule. If an employer can fire you for no reason, then what difference does it make if the employer makes a mistake, or for that matter, simply makes up a reason?
People have a real problem with this concept, because their logic is clouded by a concept of fairness. It seems horribly unfair that Maria was terminated for something she didn’t do, but even if that is proven to be the case, the employer can just say, "so sorry we were wrong about that marijuana thing, but now you’re fired because we don’t like the way you wear your sunglasses." The appeal court held that whether Maria was using marijuana or not was of no importance. Maria could be fired at the will of the employer, even if the reasons were based on a misunderstanding. Maria ended up with nothing, and had to pay all the costs her employer had incurred in going to trial and on appeal.
The same situation arises when there is a dispute between employees. I receive many calls where one employee was involved in a physical altercation with another, and one of the employees was fired. The terminated employee calls to complain that the termination was completely unfair, because he did not start the fight. He is especially upset because the other employee, who the caller says was responsible for the fight, got to keep his job. "Isn't that discrimination?", he will ask. "Aren't they required to investigate so that I can tell my side of the story?"
The answers are no and no. Get rid of the notion that an employer must treat all employees the same. It's only discrimination if the different treatment is based on race, gender, age, etc. For example, a blanket rule to fire any male accused of sexual harassment with no investigation was deemed to be a discriminatory practice because it targeted the male employees. Absent that sort of discrimination, firing one of two employees who don't get along is not only permissible, it's often a good idea.
For a discussion of workplace discrimination, go to Discrimination is Good and Permissible (another reason to work for yourself).
Nobody Likes a Snitch
Ron loved music, and could not believe his good fortune when he landed a job at a record company. It was an entry level job, but the "benefits" included meeting some of his favorite musicians, and even occasionally having lunch with them when they would take a break during a recording session.
To promote the company’s music and artists, company employees in charge of promotion could simply sign out a hundred CDs or so and give them away to radio stations and record stores in order to promote new albums. Ron happened to notice that his supervisor was always helping himself to large quantities of CDs, but never seemed to use them for promotions. He soon found out why. It turned out that Ron’s supervisor was making extra money by selling the promotional copies to record stores.
Ron didn't know what to do. He did not want to report his supervisor, and for all he knew, this might be an unofficial perk. He eventually decided, however, that if this was illegal activity and he failed to report it, he would be viewed as an accomplice. So, without making a big deal of it, he mentioned to his supervisor’s boss what was occurring.
It turned out that this practice was highly improper, and Ron’s supervisor was immediately fired. And after thanking Ron for bringing this matter to the attention of the company, Ron was also fired. It was explained to Ron that while he had done the right thing, he had rendered himself unemployable. With his demonstrated lack of loyalty to his supervisor, no other supervisor would want to work with him. He was told that "nobody likes a snitch."
Ron cried "wrongful termination," and went in search of an attorney. Under the at-will rule, an employer can fire an employee for no reason, but not for a reason that violates public policy. For example, an employer cannot fire someone on the basis of race, because that would violate the public policy against discrimination. Similarly, there is a "whistle-blower" exception that holds that it is against public policy to fire an employee for reporting wrongdoing to a regulatory agency. If employees could be fired, for example, for reporting a safety violation, then employees would be far less likely to report such violations.
So, Ron found an attorney that was willing to pursue his case under the whistle-blower exception to the at-will rule. Years later and after spending a large amount of money on court costs, Ron’s case against the music company failed. Do you need to hear it again? Absent a contract to the contrary, the employer can fire you for any reason whatsoever, or for no reason at all. If the employer wants to fire you for ratting on your boss, that is perfectly legal. The court held that Ron’s case did not fall within the whistle-blower exception. The whistle-blower exception is designed to keep employers from retaliating against employees that report illegal conduct. For example, if an aircraft mechanic knows that the company is lying to the FAA about repairs, we as a society want him to feel free to report that fact without fear that he will be terminated as a result.
At one time the courts required that the employee be an actual whistle-blower. In other words, the case would be dismissed unless the employee could show that he was terminated only after he had reported the wrongful conduct to some regulatory agency. That rule has been modified somewhat, and now a case will survive if the employee can show that he was terminated because the company believed the employee was about to report the wrongful conduct. But in Ron’s case, neither rule would provide him relief. The company was not doing anything illegal; the company was the victim. There is no public policy designed to encourage employees to report internal squabbles, so the termination was not a violation of public policy. The court held that Ron was not entitled to any protection for report a theft within the company.
Consider this. In the old days, company loyalty was rewarded. You could work at a company until retirement, and leave with a party, gold watch and pension. Nowadays, when companies are only interested in the bottom line and compassion does not enter into the equation, loyalty works against you. In most companies, you get a small raise each time you are evaluated, assuming the evaluation is good. As a natural result, the people that have been there the longest, usually the older employees, are the ones making the most money. When the economy goes bad, and the company needs to cut the payroll, who has the bigger target on their backs? Yes, it is perfectly legal to fire the employees with the most seniority. (Another cherished belief I sometimes encounter is the urban legend that a company must fire the newest employees first.) That is why so many 50 and 60-somethings find their way to my office, devastated because they were fired after so many years of loyal service to the company, and replaced by some young person they trained. They are unable to find work elsewhere because of their age and salary demands, and end up working as a greeter at Walmart.
The Freedom to Speak Your Mind
"It’s a hobby. Some people like to play instruments, I like to write." That is how Sharon explained her passion for publishing her blog on the Internet. In the olden days (about five years ago) people were content to write their daily musings in a personal journal, seen by no one except close friends and trespassers. With the advent of the Internet, there has inexplicably come the desire to publish even the most mundane thoughts for all the world to see.
In Sharon’s case, her blog was a daily report of her life, which included what was going on at work. It was not at all mean spirited, but if she felt someone had acted unfairly at the office, she might elect to report that fact in her blog. Even then, however, in order to avoid embarrassing the people she discussed, she never mentioned anyone by name.
It didn’t take too long until word of her blog spread through her workplace, and it took even less time for one of her supervisors to take offense at something Sharon had written. When Sharon showed up for work the next day, she was fired on the spot.
"Now wait a second," you say, "that is a violation of her First Amendment right to free speech." An employer may not need a reason to fire an employee, but the reason cannot violate public policy. Surely this violates her right to free speech, the most fundamental and sacrosanct of all public policies in America. Not only that, but Sharon was fired for something she was doing on her own time. That can’t possibly be legal, right?
We’ll take them in turn. Since Sharon was just speaking her mind, was her termination a violation of her right to free speech? The First Amendment states that "Congress shall make no law . . . abridging the freedom of speech." Contrary to another popularly held misconception, the right to free speech only protects you from intrusion by the government, not by individuals or companies. An employer has every right to tell you to shut the hell up. The First Amendment does not prevent a private employer from limiting what you can say. Sorry Sharon, you can say whatever you want, but your employer doesn't have to put up with it.
How about the fact that Sharon did this on her own time? Can an employer seek to control what an employee does on his or her own time? Most employees will scream, "what I do on my own time is my own business", but that is not true. To use an extreme example to illustrate the point, assume that an employer found out that one of its employees was burglarizing homes on the weekend. Few would argue that the employer is somehow required to keep a burglar on the payroll. (Some will cry "innocent until proven guilty", but again, only the government must treat you as innocent until proven guilty.) It is not in and of itself a violation of public policy to fire someone for what they do on their own time.
The issue of whether an employer can dictate what an employee does on his own time recently made big news when a large company announced that it would terminate any employees that tested positive for tobacco use. In other words, smoke at work, smoke at home, smoke anywhere and you lose your job. The vast majority of water cooler lawyers opined that the courts would shoot this down as a complete infringement of personal privacy and freedom, but they were wrong. Since an employer can fire you for any reason that does not violate public policy, that includes things you do off duty, including smoking, eating fatty foods or listening to Kenny G (which most people would consider just cause in any event).
The only time an employer cannot fire an employee for what he does on his own time is when such a limitation would itself create a violation of public policy. For example, terminating an employee because he voted on his own time is a violation of public policy because that would be an interference with the right to vote. There are also specific statutory protections for what you do on your own time. For instance, if you decide to contact other employees about forming a labor union, that is a protected activity and cannot result in your termination even though the employer may be opposed to formation of a union. However, absent a statute or a public policy, your employer can absolutely fire you for things you do on your own time. If your employer finds it strange that you collect salt and pepper shakers, the axe can fall.
In Sharon’s case, there was no protection for the musings in her blog. Posting negative comments about her employer was not deemed to be such a fundamental right that the termination violated public policy.
I know as people, especially attorneys, read these examples, they will recall a case they once read, or a story they were told, wherein people under similar circumstances did successfully sue for wrongful termination. Usually this is because while the cases sound similar, there was a crucial fact in one case that was not present in the other.
For example, I just told you the story of Sharon, and how she could do nothing about being fired for what she wrote in her blog about a supervisor. Nonetheless, I obtained a sizeable judgment for two women who were fired for what they said about a supervisor. The difference was, in the case of these two women the company was trying to evaluate the supervisor, and told the employees that they would not be fired if they said bad things about her. They said bad things about her, so she fired them. There is an equitable principle called promissory estoppel. It basically holds that if you make a promise to someone, knowing they will rely on that representation, you can be held to that promise. I successfully sued the company on the basis that the employees had relied on the "no termination" promise to their detriment, and had to be compensated.
Don’t be falsely encouraged by friends and family that are certain someone under the same circumstances recovered a bazillion dollars, unless you can be certain the facts were identical.
Are you convinced yet? My final war story illustrating why you are never safe if you work for someone else.
The Unwitting Thief
David was a dream employee. A salesman for a manufacturer, his sales always far exceeded projections. His loyalty to the company was manifest – he had worked there for 30 years – even though the company did little to earn such loyalty. For example, the company continually reduced his sales area, knowing that David would somehow find a way to wring more sales out of whatever area was left to him.
One sales technique David had used very successfully was to conduct motivational presentations at the retailers that sold his company’s product. He would work the salespeople at the stores into a selling frenzy, resulting in more sales by them and more orders for him.
One day he gave one of his presentations to the sales force of his major client — a client that represented 80% of his sales. The presentation was a big success, and while the sales people were still applauding, he scooped up all his notes and materials and put them in his briefcase. What he did not know was that he had inadvertently picked up some paperwork belonging to the customer. The documents regarded about $30 in repairs that the retailer had made to some of the products, and for which the retailer was entitled to reimbursement by David’s company.
This "theft" was witnessed by some fresh out of high school, "Third-Assistant-Night-Manager" who decided that the salesman had intentionally taken the documents in order to save his company the $30. No doubt he was sure that if he reported the foul deed, he would get a raise, and thereby be able to afford more pimple cream.
Later that day the salesman discovered the documents in his briefcase, and immediately called the customer to say he was sorry, and that he would bring them right over. It was then he got the shock of his life. He was informed that the customer had already called David’s manager and asked that he be replaced. The customer didn’t feel David could be trusted anymore. More shocking, without any hearing, or even discussing the matter with David, the boss had agreed. The customer was such a major account, that the boss did not dare say no. He had already assigned the account to another salesperson, who coincidentally worked under a much lower commission schedule than David. So, for accidentally picking up some documents, David was stripped of nearly $100,000 per year in income, without any warning, hearing, or even a chance to tell his side of the story.
Obviously, David could sue, right? Well, let’s consider that for a moment. Who would he sue; his employer? Let’s all say it together. The employer did not need a reason to fire him, so it certainly did not need a reason to remove him from an account. And, indeed, even if David could show that due to his longevity with the company, there existed an implied agreement that he could only be "demoted" for cause, arguably the employer had cause. David had taken the customer’s documents, albeit inadvertently, resulting in a very angry customer. If the employer refused to replace him on the account, it ran the risk of losing the account. If you believe the law requires a company to forgo millions of dollars in orders out of loyalty to an employee, you really do have a skewed view.
How about suing the company that insisted he be replaced? Again, he did take the documents, and there is no law that says someone must work with a salesperson they no longer trust, no matter how groundless that distrust may be.
David went attorney shopping, and while several were willing to represent him on an hourly basis, the fact that none would handle the case for a percentage of the judgment properly indicated to David that they were not confident of the result. He eventually opted to go into early semi-retirement, working as a consultant for one-fifth of his prior income. He left the company he had worked thirty years for with nothing – not even a retirement party or gold watch.
--- My employer fired me and would not tell me why. Is that legal?
Answer: It's not only legal, it's probably a good idea.
Since your (at-will) employer does not need a reason to fire you, there is no law requiring that a reason be given. Wrongful termination is often demonstrated by proving that the reason given for the termination was a pretext. For example, if your employer terminates you, claiming that your position is being eliminated, and then hires someone to replace you a week later, then there is a strong possibility that there was some other reason for the termination, and that reason might be a violation of public policy.
However, don't take this too far. Even if you prove that your boss lied through his teeth about the reason you were being fired, that doesn't mean you have proven the termination was wrongful. Many a time a boss will tell an incompetent employee his position is being eliminated, just to avoid embarrassing the worker and to prevent a fight over the work performance. Showing that the stated reason for termination was false just opens the door to the possibility that there may have been some improper motive.
As you can see, this can all be avoided if the employer gives no reason for the termination. A smart employer will just terminate you, and never say why.
--- My boss got really mad at me for no reason, and right in front of everyone he yelled at me, calling me an "idiot" and some other names. Can I sue for hostile work environment?
Answer: It depends on what was motivating him to yell at you.
People have heard the term "hostile work environment" but don't know the legal context. They believe that hostility in the workplace has somehow become illegal and actionable. I even receive calls from employees who want to sue because they are being asked to work harder, and they feel that is hostile.
Thankfully, we have not yet become a society with "polite police" ready to pounce whenever someone's feelings are hurt. Your boss can call you an idiot with impunity, so long as he's not doing it for a reason that violates public policy. In other words, if he's calling you an idiot because he thinks you are an idiot, that's permitted, no matter how hostile you might find that to be. On the other hand, if he's calling you an idiot because of your race, gender, nationality, etc., that is not permitted.
The concept of a "hostile work environment" first came from cases involving gender discrimination. The classic example is that of a fire station which previously was devoid of women firefighters. A woman finally breaks the gender barrier, but when she reports for work at the station she is greeted by nude centerfolds on the lockers and in the lunch room. Pictures of nude women are not inherently discriminatory against women employees, but it is not hard to imagine that the woman firefighter might feel uncomfortable being surrounded by this objectification of women. The courts struggled with this situation for some time, because the facts did not involve the classic form of discrimination, where the woman suffers some form of adverse job action or failure to promote. The courts then came up with the reasonable idea that even in the absence of any objective discrimination, the very atmosphere of a workplace could be hostile to women and therefore discriminatory. Thus, an older employee who never suffers adverse job action can still claim discrimination if the company permits constant jokes about age, or a minority can sue for discrimination if racist cartoons are posted.
A "hostile work environment" might also be actionable as a contract breach if it violates company policy or goes so far that it amounts to an unsafe working condition. But absent some other basis, generally you cannot sue your boss or company for being rude to you.
For more information, including the actual jury instruction read to jurors in a case based on hostile work environment, see "What Constitutes a Hostile Work Environment or Hostile Workplace?"
Answer: Yes, and sometimes that's not a bad idea.
I get this call often. An employee accepts a new position, set to start on, say, October 1st. Being a good employee, the employee gives notice on September 15, and is thanked by immediately being terminated. The employee is thereby deprived of 15 days of income, and screams that can't be fair.
For the 100th time on this page, an employer does not need a reason to fire you if you are an at-will employee. Ethically, if you were nice enough to give notice, the employer should not do this to you, but there is nothing to prevent it. Many employers have been burned, and know that if the employee is allowed to stay for those two weeks, he won't be very productive, he'll use the opportunity to download all the company files, and he will poison the minds of all the other employees, telling them how much better they could do at the new company. Plus, many just view it as disloyal and don't want the employee around.
There are some theories that could work to recover the lost wages. If you have the time and money, you could theoretically sue for, say, breach of contract if the handbook provides for two weeks notice. You'll just need to decide if it makes economic sense.
Giving notice is the right thing to do, but keep your eyes open while you are employed to see how the company responds to employees that quit. If the standard response is to have security escort them from the building, then you may want to give notice on your way out the door on your final day. On the other hand, if you have attended many going away parties given to employees that are leaving, then you are probably safe to give notice.
--- I always did a good job for my employer and got good evaluations, but now that I quit, I found out that my former employer is saying bad things about me. This is keeping me from getting a job. Is there anything I can do?
Answer: It depends on what they are saying and why they are saying it.
Time to clear up another urban legend. Many employees somehow have the idea that if a prospective employer calls a former employer to ask for a reference, the former employer is limited to confirming that the employee worked there, for how long, and what positions he or she held. That is not the law by a long stretch. Quit to the contrary, Civil Code section 47 provides limited immunity to the former employer under such a circumstance.
So long as your former boss believes what he is saying, and is not acting out of ill will or malice, he can state his honest opinion about your past performance and state whether he thinks you should be hired.
Let's take The Case of the Smoking Employee detailed above, where an employee was fired for smoking marijuana, even though she never did. Let's say that after she was terminated, and while the employer still believed that she had been smoking pot, a prospective employer called to ask for a job reference. We know that whether or not she was smoking pot is probably irrelevant to any wrongful termination claim, but can her old boss tell the new boss about her drug use?
Believe it or not, the answer is unclear. If he truly believed that the employee was using marijuana on the job, then he would not be acting with malice or ill-will, and would be protected by the limited immunity. On the other hand, I would argue that he had no reasonable basis for believing that the employee was smoking marijuana, and therefore reporting the act to a prospective employer is itself and act of ill-will. But what if he once found her sleeping at her desk, and told the new boss she is lazy? That would be OK, since he is permitted to form and report his opinion based on something he saw.
So let me bottom-line this. What should an employee do if her former employer is preventing her from finding work by making false comments to prospective employers? As you have seen, the former employer is protected if he, she or it is reporting even false information, so long as he, she or it believes the information is accurate. Therefore, you must create a record so the former employer will be put on notice that the statements being made are false. Again, if the former employer is reporting you were a bad employee, or that you were lazy, there is really no way to "correct" such statements because they are matters of opinion. If your supervisor is reporting you were a bad worker, showing you had nothing but glowing reviews for 20 years would not refute that opinion. "Sure, we always gave her good reviews because she was far better than most of the dead weight around here, but she could have been so much better," your supervisor could say.
But some facts are subject to black and white proof. If your former employer says you were always late or embezzled from the company, those are claims that can be disproven. In those cases, you respond by having an attorney write to the company, explaining what was reported to the prospective employer, why that information is false, and that you will sue if it is reported again. Now the former employer is on notice that the information being reported is false. It may not agree, but you have put it on notice, and if it continues to report the information after being informed that it is incorrect, then that is a much stronger case for you.
Now for extra credit, consider this: Let's again use the example of the employee falsely accused of smoking marijuana on the job. She was told that she was fired for smoking pot, so if she then goes to apply for a new job and is asked why she was fired from her last job, what answer must she give if she answers truthfully? That's right; she will have to say that she was fired for smoking pot. Of course she will then explain that the reason was false, but it is going to make it much more difficult to find work. Why should an employer take a chance on an employee fired for smoking pot when there are dozens of other candidates?
This concept is called "compelled self-publication defamation", which almost always arises in the employment context. Our "pot-smoking" employee had no claim for wrongful termination, but she may have a claim for defamation, based on the fact that she is now compelled to repeat the defamatory claim. This fact can be a very powerful tool in getting your former employer to alter the reason given for termination so that you won't be damaged goods to prospective employers.
--- If my employer presents me with a written warning, for something I didn't do, can I refuse to sign it?
Answer: Sign the warning.
It's very upsetting when an employer asks you to sign a write-up, when you know you did not do what it says. But you need to take a deep breath, focus, and read the document. In my experience, 98% of the time the warning will say that you are only signing to confirm that you received the warning. There is nothing wrong with admitting that you received the warning. If it makes you feel better, write "signed under protest" beneath your signature. If you refuse to sign a warning, when it is merely asking you to confirm that you received it, your employer can properly fire you for insubordination.
Let's say you filed a workers compensation claim, and your employer decided to start documenting all your mistakes (and make up a few) in order to get rid of you as retaliation for filing the claim. By refusing to sign the warning, you just handed the employer a perfect reason to fire you, and possibly threw your wrongful termination claim out the window. The better course is to sign the warning, and then immediately place your own memo in the file, politely explaining why you did not do what the warning says you did.
As with all things, be sure to use your common sense when creating your own documentation for the file. If I asked an employee to sign a written warning about being late, and he responded by writing "signed under protest" under his name and then asked that his own memo about the incident be placed in his personnel file, I'd probably fire him for those subsequent actions, even though I was willing to let him off with a warning for being late. It gives the impression that he is refusing to own up to a mistake, and will be a problem in the future. Don't document the file unless you are confident you are on your way out.
Be sure to read, 10 Workplace Myths that Will Bite You in the Butt.
First make certain you understand when you are entitled to unemployment, because a number of callers have it exactly backwards. You don't get unemployment if you quit, only if you are fired. And even if you are fired, you won't get unemployment if you were fired for doing something willful such as stealing from the company. So if you are going to lose your job, it would always be better to be fired so that you can get paid unemployment, right?
Not so fast. Just as having a good credit record has its advantages, there is tremendous value in having a perfect work history. When you apply for a job and the employer asks you if you have ever been fired, would you rather answer yes or no? If you are competing for a new job, and the prospective employer is deciding between someone with a perfect work history and you -- who had to explain that you were fired from your previous job but it wasn't really your fault because you did use the company credit card for personal reasons but everyone else was doing it and you intended to pay it back -- who do you think the employer will choose?
A compassionate employer (or an evil employer that just wants to avoid paying unemployment), on deciding to fire you, may give you the option to resign. But if you quit your job, in most instances that will make you ineligible for unemployment payments. You must therefore decide whether it is worth giving up unemployment in order to keep a perfect job history. If you are confident that you will find new work quickly, then resigning is probably the way to go. If you think it may take some time to find new work, then you might have to take the hit and insist on termination in order to qualify for unemployment (assuming the termination is not for a reason that would prevent you from receiving unemployment in any event).
Warning! Resigning in order to preserve your perfect work history will have little benefit if your former employer trashes you to future subsequent employers. If your employer gives you the option to resign or be fired, and you want to resign, then get it in writing that the employer will give you good recommendations, or at least will not speak poorly of you. Your employer is motivated to cooperate in the process because he, she or it does not want to pay unemployment.
Even if your employer does not offer you the option to resign, they will probably jump at the chance to let you do so if you ask. Not only will they avoid paying unemployment, if you resign that will greatly reduce your ability to bring a wrongful termination action, something the employer is always worried about.
Note also that many employers don't present the resignation as an option, but instead just call you in and say, "this isn't working out, so we're going to accept your resignation effective today." That is still a termination whatever the company called it, and if you want to collect unemployment you would still be entitled to do so. Just be certain you do not sign anything indicating that you resigned your position, unless that is your choice.
--- My employer treats me differently than everyone else. Can I sue for discrimination?
Answer: It depends on why you are being treated differently.
The confusion here arises from the dictionary definition of discrimination versus the legal definition. Callers to our office will complain that they are the only one being written up for something that everyone else is doing. They will offer an entire list of differences in the way they are being treated.
Yes, under the dictionary definition that is discrimination, but it is only actionable discrimination if it can be shown that the caller is being treated differently because of one the criteria set forth above (his race, age, gender, etc.). An employer does not need to treat all employees the same. Also, there may be legitimate reasons for the different treatment. If an employer sees that everyone is showing up late, he may decide that now is the time to start writing people up for the infraction and you just happened to be the first one nailed under the new stricter policy.
Many employees jump to the conclusion that they are being discriminated against on the basis of their race, age, gender or religion because they see that as the primarily distinguishing factor. No one wants to admit to themselves that they are not a good worker, or perhaps the boss just does not like them. "Why does the boss treat me so differently than everyone else?" the employee asks herself. "I know, it must be because I'm . . ." and at this point she inserts her distinguishing factor.
I've received many calls from employees saying they are being discriminated against on the basis of nationality, age or gender, but when I ask if anyone else in the department is the same nationality, age or gender, they answer the EVERYONE is the same nationality, age or gender, including the boss that is allegedly discriminating on that basis. Unless the boss is self-hating, do you see that discrimination is a very unlikely scenario?
This is a crucial point to understand, and even some attorneys don't get it. It is not enough to simply be a member of a protected class; to prove wrongful termination you must show you were terminated because you belong to the protected class. A recent case out of Iowa beautifully illustrates this point. In that case, a dentist fired one of his dental assistants because she was too attractive. Even though she had done absolutely nothing to lead him on or to cause him to believe she would ever be interested in him, he found her so attractive that he worried it could put his marriage in jeopardy if he ever acted on his attraction. He fired her for his own perceived weakness toward her beauty, and she sued for wrongful termination. He freely admitted that she had been an outstanding employee, and that the only reason for her termination was his attraction to her.
The trial court threw out the case, finding that his decision to fire her was not based on her gender, and the Iowa Supreme Court agreed. You see, all of his employees were women, and the terminated employee was replaced by a woman. At first blush, it certainly seems like gender discrimination because he was attracted to her as a woman, and presumably he would not have had the same issue with a man, but that attraction was specific to her. His discrimination wasn't against women, it was against her. As this case demonstrates, if you are going to claim discrimination, you must be able to prove very specifically that the discrimination was based on your gender, race, nationality, etc., not that you just happen to belong to that protected class.
Discrimination is usually proven through evidence of a pattern of discrimination. When you read about these large discrimination cases against, for example, Walmart, it is because it was shown statistically that the company was not promoting African-Americans to management positions, when all other factors were taken into account (seniority, education, performance reviews). Hearing your boss tell a racist joke could be evidence of discrimination, but standing alone it would not support a claim.
Incidentally, the Fair Employment and Housing Act prohibits discrimination only by businesses with five or more employees. If you and three others are the only employees for a small business, you are not protected against discrimination under the FEHA.
For a discussion of workplace discrimination, go to Discrimination is Good and Permissible (another reason to work for yourself).
--- Is an employer required to follow the employee handbook?
Answer: Yes, but the employee handbook doesn't say what you think it says.
Fifteen years ago, employee handbooks were the bread and butter of wrongful termination attorneys, because they created a way to get around the at-will employment rule (discussed above). The handbooks were written to keep the employees happy by showing the benevolence of the employer. Typically the handbook would contain a section explaining that before terminating an employee, the company would first issue a verbal warning, then a written warning, then the employee would be placed on an action plan and finally if the errant behavior did not improve, the employee would be suspended for a set number of days. Only after all these steps had been followed could the employee be terminated.
If a terminated employee could show that he or she relied on the employee handbook, that created an implied agreement. Thus, if the employer failed to follow the handbook and, say, terminated an employee without the requisite suspension, the employer was in breach of the implied agreement. The employee could recover all the damages that flowed from the breach.
This "loophole" was easily fixed. If an employee is going to point to the handbook and claim that he relied on it to form a contract, then all the employer needs to do is insert language stating that the handbook is not a contract and should not be relied upon by the employee. I now have a standing bet with all those who call my office, convinced that the employer is required to warn them of misconduct, or suspend them, or follow some other procedure before termination. I tell them I will pay them a dollar if the handbook does not contain language in the first two pages, stating (1) that the handbook is not a contract, (2) that the employer does not need to follow any of the procedures set forth in the handbook, and (3) that the employer can change anything in the handbook at any time without notice to the employee. So far no one has collected the dollar.
Employee handbooks are still the bread and butter of many employment lawyers, but for a different reason. Having been terminated, the employee flips open the handbook and finds the magic words about how the employer is "required" to warn them and give them a chance to fix the problem before termination. When they call and explain this to an attorney, the attorney instructs them to gather all their documentation and bring it in for a review. They then sadly explain that the employee handbook by its terms is not a contract. That will be $500 please.
It is very important that you immediately review the company's handbook AND your personnel file if you are entertaining the idea of pursuing legal action. An attorney is probably best equipped to perform that job, but there are really just four things you need to look for if you decide to do it yourself.
1. Does the handbook specifically state that it is not a contract, and need not be followed by the company? If so, then it probably doesn't matter what else it says.
2. If there is no such language, and you relied on the handbook, then did the company fail to follow the handbook? If so, then you may have a breach of contract action.
3. Does the handbook or personnel file limit the time to bring an action?
4. Does the handbook contain an arbitration provision. If so, then the arbitration service will likely have its own procedures that will need to be followed.
When you go to review your personnel file, be sure to prepare an inventory, as explained more fully above.
Again, don't take this as legal advice since few things in the law are black and white. Some court decisions have expressed displeasure at the idea that an employer can state a procedure in the handbook but reserve the right to ignore it. If the totality of the handbook makes it a close call as to whether a contract was created, you should run it past an attorney.
--- If I was wrongfully terminated, how long do I have to sue?
Answer: It depends on a number of factors.
Few things are black and white under the law. The answer to this question used to be fairly simple. If you are suing for a reason that falls under the Fair Employment and Housing Act (i.e., discrimination for age, gender, race, etc.), then you generally have a year to file your complaint with the Department of Fair Employment and Housing. If you are suing for a garden-variety breach of contract claim, then you could have as long as two to four years, depending on whether the agreement was oral or written.
But as of late, employers have started adding provisions to employment agreements that seek to limit the length of time an employee can bring an action -- usually six months. If such a provision is deemed enforceable, that could limit the time to bring the action. See Limiting the Time for an Employee to Sue for more information.
It has therefore become even more important that you obtain a copy of your personnel file and allow an attorney to review it for such limitations, as well as any arbitration provisions. See the information above and Employee Rights to Personnel File for more information on obtaining your file.
--- A fellow employee started a fight with me at work, and without any investigation, the company fired me but allowed the person that started the fight to keep his job. Can the company do that?
Since the employer does not need a reason to fire you, the best way to deal with two employees that can't get along is to fire one or both of them. There is no duty to investigate, because it doesn't matter who was at fault. However, if the company is making the decision on a discriminatory basis, that would be actionable as discrimination. For example, in one case a company had a standing policy to dismiss any employee accused of sexual harassment. That was deemed to be discriminatory against males since they are the most frequent targets of harassment claims. (None of this is to say that you cannot pursue a battery claim if you were attacked, but it would not be a wrongful termination for one employee to be fired instead of the other.)
Again, none of the above was intended as legal advice. Every case has its own unique facts. Truth is, while the above examples were offered to illustrate the strength of the at-will presumption in California, as we recount these examples we always feel like we could have prevailed on some of these claims. However, if you call to discuss your wrongful termination case, the first questions we are going to ask are, "were you an at-will employee, and if so, what public policy was violated by your termination?" If you read the above examples in detail, you should be far better equipped to answer those questions.
Morris & Stone -- Southern California's
Premier Wrongful Termination Firm
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