Category: Wrongful Termination

“Lay-off” vs. “Terminated” vs. “At-Will”

In day to day language, many of these terms can be used interchangeably. Normally, being “laid off” or being “terminated” or being “fired” mean the same thing. In the realm of the law, however, these terms are specifically defined to mean different things. The differences are subtle and nuanced, but different nonetheless.

According to California Labor Code §1400(c), a “layoff” means the following: “a separation from a position for a lack of funds or lack of work.” Meaning, a layoff is specifically used to define a person who was let go based on the nature of the quantity of the work, not the quality of the work. In the same vain, a “mass layoff” as defined by Labor Code §1400(d) is “the layoff during any 30 day period of 50 or more employees at a covered establishment.” Again, layoff legally is used to mean letting employees go based on the amount of work or funds available to the employer.

Then what does it mean to be terminated? Or fired? As per Labor Code §1400 (f), “termination” means “a cessation or substantial cessation of industrial or commercial operations” from the employee. Termination is analogous with the common term of being “fired.” One may be fired or terminated for a variety of reasons but is traditionally used to mean letting an employee with performance issues go.

So that brings us to the term, “at will.” What does that mean? The state of California, as with the majority of the nation, follows an “at will” presumption. This means, in the absence of an employee contract stipulating very certain parameters, all employees are presumed to be “at will” or voluntarily employed. Under “at will” an employee can be fired for any reason or no reason at all, as long as that reason is not unlawful. Even if an employee is fired based on a mistake, or if the punishment seems too harsh, it can still be lawful for the employer to do so.

Now let’s look at the exceptions: (1) breach of contract; (2) breach of the “Covenant of Good Faith”; and (3) violation of public policy. Let’s bring our attention to reason #3: “violation of public policy.” Violating public policy is one of the exceptions to “at will” and may also be constituted as “wrongful termination.”

If an employee is wrongfully terminated in violation public policy, it means there is an apparent “causal connection” between an employee expressing their rights and the employer firing them. For instance, let’s say an employee is being sexually harassed by a supervisor. He or she reports it to upper management so that they may be removed from the supervisor’s department. Management does not listen, but instead decides to get rid of the complaining employee and fires him or her. This employee was attempting to exercise his or her right to work in an environment free of sexual harassment as protected by the Labor Code. Out of retaliation, the employee was fired. This is an example of an employee being fired in violation of public policy. There was a cause and effect phenomenon that occurred. The employee complained, and then was fired for it. This is actionable by the former employee by law.

If you have been wrongfully terminated in violation of public policy either out of retaliation or from any of the other mentioned reasons (discrimination and harassment may also be a basis for wrongful termination) please contact an Aegis attorney immediately.

Age Is Not Only a Number…It’s Protected

In the United States, it is illegal to discriminate against a person over 40 because of their age.  Sometimes this comes up when a young, new boss says he wants to get rid of all those “old farts” and “bring in some new blood.”  Other times, an older worker is fired so the company can replace him with someone who is younger and quicker at the same task.

Most often, though, the reason age discrimination occurs is less straightforward – it is not actually the employee’s age that puts him in the cross-hairs, but his experience.  More senior workers with more experience frequently make higher salaries than younger, less experienced competitors.  In a tight economy, companies looking to save money might be tempted to axe old-timers and replace them with much less expensive, new workers.

This is often a poor idea for the company because it is losing the value of significant experience, know-how, and maturity.  But it is not just a bad idea – it can actually be illegal.

The Jackson Bill Round 2

We previously blogged about the protections to victims of domestic violence as written in SB 400 (The Jackson Bill), and now we are blogging once more about the game changing law. SB 400 has been expanded to include victims of stalking. Now, as the bill reads, “an employer with 25 or more employees shall not discharge or in any manner discriminate or retaliate against an employee who is a victim of domestic violence, sexual assault, or stalking for taking time off from work to attend to any of the following:

(1) To seek medical attention for injuries caused by domestic violence, sexual assault, or stalking.

(2) To obtain services from a domestic violence shelter, program, or rape crisis center as a result of domestic violence, sexual assault, or stalking.

(3) To obtain psychological counseling related to an experience of domestic violence, sexual assault, or stalking.

(4) To participate in safety planning and take other actions to increase safety from future domestic violence, sexual assault, or stalking, including temporary or permanent relocation.”

The aforementioned will take effect on January 1, 2014, as will SB 288, which extends protections to victims and those associated with victims of violent crimes. SB 288 will make it unlawful to take adverse employment action toward victims of violent crimes who need to take time off to attend court hearings. Protections extend to victims’ spouses, child, guardian, sibling, etc. as well.

Refusing To Sign A Warning Considered Misconduct!?

The Court of Appeal in Paratransit v. UIAB, tackled a common wrongfully terminated question for employees, can my employer fire me for not signing a written disciplinary notice? According the Court in the Paratransit case, the answer could be yes.

Craig Medeiros, the employee who was fired, was a union member. His negotiated union contract required his employer to obtain the signature of the employee being issued a disciplinary notice. The notices however, must include a disclaimer that states that the employee is only acknowledging receipt of the document. Continue reading “Refusing To Sign A Warning Considered Misconduct!?”

$1.5M Sexual Harassment Win For Contract Phlebotomist

Aegis-Sexual-Harassment-AttorneysA Vista Superior Court jury awarded Kimberli Hirst $1.5 million for a pattern of ongoing sexual harassment an officer of the Oceanside Police Department. Kimberli was a contract phlebotomist who took blood samples from those accused of driving under the influence. She was employed by American Forensic Nurses.

The officer accused of the sexual harassment admitted to making inappropriate and suggestive comments, however he claimed that she invited the attention. The Oceanside Police Department and the City of Oceanside claim that the contract employee never complained of the harassment and they only learned of the offensive behavior when a security guard who overheard conversations between the contract employee and the male officer. Continue reading “$1.5M Sexual Harassment Win For Contract Phlebotomist”