Wrongful Termination:
The first term that employers need to understand is the term wrongful termination. Not only should employers understand the term, but they must also understand what the California Supreme Court would consider being a wrongful termination.
The easiest way to understand what wrongful termination is is to give you a couple of examples.
- Terminating an employee because he or she makes a formal complaint about safety in the workplace. This complaint can either be made in-house or the complaint may be lodged with Cal-OSHA.
- Firing an employee because they make a claim either to the management of the company, or file a claim with the labor board concerning unfair wage payment practices.
- Dismissing an employee because they file a claim or make complaints to the supervisor concerning discrimination. Again this claim may be filed in-house or it may be filed with the Department of Fair Housing and Employment.
When an employer files someone for “At-Will” that is not a wrongful termination case. A wrongful termination case must involve a policy that affects the public interest. That is the foundation or a wrongful termination. Secondly, the issue must affect society at large as opposed to just an individual.
Employers Beware of the Following:
If you have an employee who is documenting their workplace complaints in writing. If an employee is doing this, it will be very difficult for you to deny the issue. Emails, and sending them to different levels of management will firm up the employee’s case should one arise.
So if you run into this you need to be aware that this employee knows what they are doing, this means that you need to know and understand the ramifications of what you are doing.
This is exactly why every employer in the state of California should have a good California Labor Laws and Cal-Osha Consulting service working with them. The Labor Laws California are much more complex than they have ever been.
At-Will Employment:
I love the term “At-Will Employment”. With the way that California Labor Laws and Cal-OSHA is going, this is like Custer’s last stand for employers. So much of the rights of employers here in this great state have been taken away by employee-friendly laws, that it is just not fair.
Well, at-will employment balances the scales by allowing employers to fire almost at will. The beautiful thing about the At-Will Employment Status is that if it is done right there will be no lawsuit unless you the employer goes beyond the boundaries of being fair to your employees.
When you choose to use the At-Will Status, and the employee asks you for a reason that he or she is being terminated, you must be very careful with what you say. You answer this question wrong and you can find yourself in court in a New York Minute.
The correct answer is as an At-Will employer we have decided to go in a different direction. No matter how many times the employee asks you why is he/she being fired or terminated you must answer in this fashion.
Anything else that you may say could lead you to court.
Here is something you need to understand if you fire your employee because of race, ethnicity, gender, sexual orientation, religion or any other protected characteristic, which would include age or disability.
Should you fire someone for filing a formal or informal complaint against your company with any governmental agency like Cal-OSHA or the Department of Labor, or the Department of Fair Housing, all of the above are a basis for a wrongful termination lawsuit and your At-Will Status will not protect you in such cases.
What is a “Hostile Work Environment”?
The term hostile work environment has been talked about a lot of late. Employers need to understand what constitutes a hostile work environment that will become actionable, leading to an employee lawsuit.
Just because an employer is a grumpy or rude person does not mean that there is a hostile work environment. It should be noted here that some industries such as the construction, and automotive repair shops have a rougher edge to them. Now while there may be a form of harassment going on this in many cases will not constitute a hostile work environment that can be taken to court.
What Constitutes an actionable hostile work environment?
The hostility must be able to be tied to one of the following
- Race
- Sex
- Age
- Disability
- Ethnicity
- Sexual Orientation
- And the like
For example, Sexual Harassment can rise to this level provided that it consists of severe or pervasive staring which may include speech and physical touching that is unwanted. This would be highlighted if the person had documented that they had complained either in an email or by telling some form of management and then keeping accurate notes of the time and dates when this unwanted behavior took place. But the documentation of this kind of behavior does not have to be documented for it to meet the hostile work environment standard.
Remember, just because an employer is a jerk does not mean that there is a hostile work environment. Recently the California Supreme Court has ruled that evidence of discrimination could also be evidence of harassment that would qualify for the hostile work environment. The important aspect of this is that the same evidence could allow for both types of claims both discrimination and a hostile work environment.
Who is a Whistleblower?
In short, a whistleblower is someone who reports an unlawful action that the company is engaging in. This report can either be to the supervisors or management team within the company or it can be reported to an agency outside the company.
Should the employee who is the whistleblower be fired for the reporting of an illegal activity of the company they may very well have a wrongful termination lawsuit. Even if the employee is not fired but is demoted or punished in any way there could still be the possibility that a lawsuit could be in the works.
So in general, if you report unlawful activates internally to your management team and then you are fired there is a good chance that the employee would have a valid claim.
What about employees returning to work after pregnancy leave?
Once the pregnancy disability leave is over, the law guarantees for the most part that the employer must grant a return to the same position as the employee had before. If the specific position that the employee held is gone, then the employer must give the employee a position that would be similar in pay and stature.
The major exception to this would be because of a company downsizing or a plant closure. Even then the burden of proof is on the employer to prove that providing this position would be an extreme hardship financially.
Another exception could be if the employee’s job had been eliminated, but again the burden of proof is on the employer.