Retaliation & Wrongful Termination
A wrongful termination can have significant impacts on an employee’s life. In addition to causing financial stress, wrongful terminations can also result in emotional distress and possibly even damage someone’s professional reputation and career.
At the Azadian Law Group, PC, our Los Angeles wrongful termination lawyers are dedicated to standing up for employees’ rights and holding employers accountable for illegal dismissals. Focused on providing aggressive legal advocacy, our attorneys are ready to help you fight for the maximum possible recovery if you have been the target of a wrongful termination.
What Is Wrongful Termination?
California is an “at-will” employment state.1 This means that, when employees don’t have an employment contract detailing grounds for termination, they are presumed to be “at-will” employees.
At-will employees may be terminated for any (or no) reason, so long as it’s not illegal. Generally, illegal reasons for firing at-will employees involve terminations stemming from or related to:
- Discrimination, such as racial discrimination, gender discrimination, pregnancy discrimination, age discrimination, and disability discrimination
- An employee exercising his or her rights, including the right to blow the whistle on an employer’s illegal or fraudulent actions or refusing to participate in such actions.
When Wrongful Termination Occurs: Common Examples of Wrongful Termination
“Wrongful termination cases typically arise when an employer retaliates against an employee for . . . reporting an alleged violation of a statute of public importance.” See Gould v. Maryland Sound Indus., Inc., 31 Cal. App. 4th 1137, 1147 (1995). Some common and more specific examples of wrongful termination include (but are not necessarily limited to) being fired or dismissed from a job as a result of:
- Complaining about workplace hazards or safety issues
- Reporting workplace discrimination or harassment
- Requesting reasonable disability accommodations (for disabled workers)
- Taking medical leave, such as disability leave
- Refusing to engage in an employer’s fraudulent practices
- Refusing to lie to a government agency on behalf of an employer
- Reporting an employer’s illegal actions, such as fraud, to government authorities (i.e., whistleblowing or blowing the whistle on an employer)
Even where the employee is mistaken (meaning their complaint is not factually valid), they are still protected against retaliation as long as they reasonably believed their complaint was justified. See Nosal-Tabor v. Sharp Chula Vista Med. Ctr., 239 Cal. App. 4th 1224, 1242 (2015) (reversing summary judgment in favor of employer and finding that wrongful termination based on Labor Code section 1102.5(c) because a reasonable juror could find that the employee/nurse was retaliated against for refusing to lead a cardiac stress test, which the nurse/employee believed should be led by a doctor and was not within a nurses scope of practice); see also Barbosa v. IMPCO Technologies, Inc., 179 Cal. App. 4th 1116, 1123 (2009) (“The public policy behind § 6310 is not merely to aid the reporting of actual safety violations it is also to prevent retaliation against those who in good faith report working conditions they believe to be unsafe. As long as the employee makes the health or safety complaint in good faith, it does not matter for purposes of a wrongful termination action whether the complaint identifies an actual violation of other workplace safety statutes or regulations.”); Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028, 1043 (2005) (“It is well established that a retaliation claim may be brought by an employee who has complained of or opposed conduct that the employee reasonably believes to be discriminatory, even when a court later determines the conduct was not actually prohibited by the FEHA. . . . A rule that permits an employer to retaliate against an employee with impunity whenever the employee’s reasonable belief turns out to be incorrect would significantly deter employees from opposing conduct they believe to be discriminatory.”)
FAQs about Wrongful Terminations & Employees Rights
Elaborating more on this issue, the following answers some common questions about wrongful terminations and employees’ rights in California.
Q – I was fired all of the sudden, without any reason. Was I wrongly terminated?
A – Possibly, but not necessarily. Given that California is an at-will employment state, your employer can fire you all of the sudden, without providing any reason.
However, if you have never received a negative performance review and you are dismissed from your job out of the blue, it’s strongly advised you consult with a wrongful termination attorney, who can carefully review the details of your situation and inform you if you were, indeed, the target of a wrongful termination.
Q – What is a ‘constructive discharge’?
A – A constructive discharge (which may also be referred to as a constructive dismissal or a constructive termination) occurs when an employee is forced to quit his or her job due to hostile working conditions, including conditions that:
- An employer has directly created.
- An employer has failed to rectify.
More specifically, a constructive termination occurs when the employer “knows about [intolerable working conditions] and fail to remedy the situation in order to force the employee to resign. . . .This standard, requiring employees to notify someone in authority about the intolerable working conditions, permits employers unaware of any wrongdoing to correct a potentially destructive situation and ‘discourages employer inaction.” Casenas v. Fujisawa United States, 58 Cal. App. 4th 101, 114 (1997).
For instance, a constructive discharge can occur when harassment and/or discriminatory practices at work make the working conditions so adverse that the employee has to resign. However, a constructive termination may be based on far more complicated facts. See Thompson v. Tracor Flight Systems, Inc., 86 Cal. App. 4th 1156, 1170-1171 (2001) (A supervisor’s continuous course of “yelling and screaming,” unfair and harsh criticism, uncorrected by management, may constitute objectively intolerable working conditions.); see also Colores v. Board of Trustees, 105 Cal. App. 4th 1293, 1309 (2003) (A supervisor’s attempts to get an employee fired, including repeated efforts to invent documentation against the employee, frequent reorganization of her duties and demands that she process unlawful orders, may constitute “intolerable” working conditions for a constructive termination).
When such constructive discharges occur, employees can have grounds to sue for wrongful termination.
Q – How long do I have to file a wrongful termination in California?
A – It depends on the nature of your claim. In general, however, the California Fair Employment and Housing Act (FEHA)2 provides 300 days from the date of termination for workers to file a complaint. To receive more specific answers about time frames and filing deadlines for your case, contact the Azadian Law Group, PC today.
Q – How can I prove that I was wrongly terminated by my former employer?
A – Again, it depends on the details of your situation. While an experienced wrongful termination lawyer can provide you with more specific answers about your potential case and circumstances, in general, it can be possible to establish that a wrongful termination has occurred based on evidence such as (but by no means limited to):
- Employment contracts
- Employee handbooks
- Past performance reviews
- Company memos or emails
- HR records and files on employees
Retaliation Is Now The Most Common Form Of Illegal Employment Action Taken By Employers
In August 2016, the Equal Employment Opportunity Commission (EEOC) released its final Enforcement Guidance on Retaliation and Related Issues. The guidance replaces EEOC’s 1998 Compliance Manual on retaliation and clarifies the agency’s perspective on what constitutes retaliation under the Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act (ADA), the Equal Protection Act (EPA), Title II of the Genetic Nondiscrimination Act (GINA), and Section 501 of the Rehabilitation Act.
The effective date of new guidance was August 29, 2016. The last time retaliation guidance was provided by the EEOC was in 1998. In a statement related to releasing the new guidance, EEOC Chair Jenny R. Yang: “Retaliation is asserted in nearly 45 percent of all charges we receive and is the most frequently alleged basis of discrimination.”
The EEOC retaliation guidance is very important in the sense that the guidance is largely based on Supreme Court and the lower court rulings regarding employment-related retaliation. See EEOC v. New Breed Logistics, 783 F.3d 1057, 1067 (6th Cir. 2015) (“Great deference” is given to the EEOC’s interpretation by Courts.)
What Specific Laws Prohibit Retaliation?
For purposes of the EEOC enforcement, the following Federal Laws prohibit retaliation:
- Title VII of the Civil Rights Act of 1964
- Age Discrimination in Employment Act (ADEA)
- Americans with Disabilities Act (ADA)
- Rehabilitation Act
- Equal Pay Act (EPA)
- Genetic Information Nondiscrimination Act (GINA)
Other Federal laws outside of the EEOC’s responsibilities also prohibit retaliation, including:
- Sarbanes-Oxley Act (protects employees of public companies who “blow the whistle” by reporting conduct that they reasonably believe constitutes a violation of federal law relating to financial, securities or shareholder fraud).
- Dodd-Frank Act (provides protection to whistleblowers by prohibiting retaliation by employers against individuals who provide the SEC with information regarding potential securities violations).
Also, California state employment laws provide numerous additional protected activities, including complaints about unsafe working conditions, refusal to participate in illegal activity, complaints about unsafe patient care, and complaints about defrauding the government (to name a few).
Protected Activity Generally Takes Two Forms
“Protected activity” refers to actions an employee takes that are protected against retaliation by his or her employer. These protected activities can be broken down into two broad categories: (1) participation by the employee; and (2) opposition by the employee.
“Participation” is the rare form of protected activity and generally consists of making a complaint with the EEOC, acting as a witness in a hearing related to discrimination or other illegal employment practice, or filing a lawsuit related to discrimination or other illegal employment practice. Employees who participate in such activities are protected even when their underling complaint is not valid. See Wyatt v. City of Bos., 35 F.3d 13, 15 (1st Cir. 1994) (“there is nothing in [the participation clause’s] wording requiring that the charges be valid, nor even an implied requirement that they be reasonable.”); see also Ayala v. Summit Constructors, Inc., 788 F. Supp. 2d 703, 720-21 (M.D. Tenn. 2011) (holding that anti-retaliation protection for participation is “‘not lost if the employee is wrong on the merits of the charge, nor is protection lost if the contents of the charge are malicious and defamatory as well as wrong.”)
“Opposition” is the much more common form of protected activity in the employment context, including internal complaints to managers or human resources about a discriminatory or illegal employment practice. The opposition clause of Title VII has an “expansive definition.” EEOC v. New Breed Logistics, 783 F.3d 1057, 1067 (6th Cir. 2015). As the Supreme Court stated, “[w]hen an employee communicates to her employer a belief that the employer has engaged in . . . a form of employment discrimination, that communication virtually always constitutes the employee’s opposition to the activity.” Crawford v. Metro. Gov’t of Nashville & Davidson Cty., 555 U.S. 271, 276 (2009).
Some examples of an employee’s “opposition” serving as a protected activity, include:
- Complaining to a supervisor that you are being treated less favorably due to his or her race, gender, disability, or religion. See Valentín-Almeyda v. Municipality of Aguadilla, 447 F.3d 85, 94 (1st Cir. 2006).
- Complaining to HR that you are being paid less due to your gender. See EEOC v. Romeo Cmty. Sch., 976 F.2d 985, 989-90 (6th Cir. 1992) (holding that retaliation claim was actionable under the FLSA, as incorporated into the Equal Pay Act, for complaint to supervisor about male counterparts being paid $1/hour more).
- Assisting other employees with their complaints to supervisors or HR. See Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39, 47-48 (1st Cir. 2010) (holding that plaintiff engaged in opposition by assisting a female scientist under his supervision in filing and pursuing an internal sexual harassment complaint, even though he did not “utter words” when he and the subordinate met with a human resources official, since his action in accompanying her “effectively and purposefully communicated his opposition to” the alleged harassment).
To Qualify As Opposition The Employee Does Not Have To Use Legal Buzz Words
The EEOC’s guidance provides: “The communication itself may be informal and need not include the words ‘harassment,’ ‘discrimination,’ or any other legal terminology, as long as circumstances show that the individual is conveying opposition or resistance to a perceived potential equal employment opportunity violation.”
For example, in Okoli v. City of Balt., 648 F.3d 216, 224 (4th Cir. 2011), the Court ruled that it was sufficient to constitute “opposition” that the employee complained about “harassment” and described some facts about the sexual behavior in the workplace that was unwelcome, and that she did not need to use the term “sexual harassment” or other specific terminology.
In contrast, just complaining about unfair treatment is generally not protected. In Barber v. CSX Distrib. Servs., 68 F.3d 694, 701-02 (3d Cir. 1995), the Court ruled that an employee’s letter to human resources complaining that the job he sought went to a less qualified individual did not constitute opposition to age discrimination, because the letter did not explicitly or implicitly allege age was the reason for the alleged unfairness.
Can Opposing Discrimination Take Other Forms?
While opposition is usually in the form of a complaint made by the employee, this is not always the case. The EEOC’s guidance provides the examples of
- An employee who was simply interviewed by HR based on another employee’s claims of sexual harassment and provides corroborating information. The employee is protected even though she did not instigate or make any complaint.
- An employee disobeys a supervisor’s directive not to hire any African Americans. The employee’s refusal to obey the order constitutes “opposition” to an unlawful employment practice and would be a protected activity even if the employee did not complain about the issue.
- A female employee tells her supervisor “I don’t think I am being paid fairly. Would you please tell me what men in this job are being paid?” This would qualify as a protected activity.
Can an employer retaliate against an employee based on the employee’s relationship with someone who has made a protected complaint?
No. The United States Supreme Court in Thompson v. N. Am. Stainless, LP, 562 U.S. 170 (2011) ruled that the male fiance of a female employee who filed a complaint a of sex discrimination against the employer with the EEOC was protected under the law and stated a claim for violations of Title VII’s anti-retaliation provision. It did not matter that the male fiance did not make a complaint himself or engage in a protected activity. The Court reasoned that the male fiance was “not an accidental victim of the retaliation — collateral damage, so to speak, of the employer’s unlawful act. To the contrary, injuring him was the employer’s intended means of harming” is fiance who had made a complaint of sexual harassment against the employer.
When is an employer’s action serious enough to be retaliation?
The most severe form of retaliation is terminating/firing the employee. However, other forms of negative treatment (called adverse actions) are also prohibited, such as suspensions, demotions, and reductions in pay.
The Supreme Court in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006) ruled that a “materially adverse action” subject to challenge under the anti-retaliation provisions encompasses a broader range of actions than an “adverse action” subject to challenge under the non-discrimination provisions. In light of the purpose of anti-retaliation protection, it expansively covers any employer action that “might well deter a reasonable employee from complaining about discrimination.” An action need not be materially adverse standing alone, as long as the employer’s retaliatory conduct, considered as a whole, would deter protected activity.
Examples of negative treatment that is sufficient to prove a “materially adverse action”:
- Suspending an employee without pay for 37 days even though the lost pay was later reimbursed.
- Changing the work schedule of a parent who has caretaking responsibilities for school-age children
- Excluding an employee from a weekly training lunch that contributes to professional advancement.
- Denial of a deserved rise in performance rating can be actionable as retaliation. Walker v. Johnson, 798 F.3d 1085, 1095 (D.C. Cir. 2015). However, an interim performance of “borderline acceptable” was not materially adverse because it was delivered orally, with no written record placed in the plaintiff’s personnel file, and the evaluation was superseded by the plaintiff’s year-end review.” See Porter v. Shah, 606 F.3d 809, 817-18 (D.C. Cir. 2010).
- Transfer of high level executive even without any loss of pay was actionable as retaliation where he was relegated to a non-supervisory role and non-substantive duties. See Kessler v. Westchester Cty. Dep’t of Soc. Servs., 461 F.3d 199, 209 (2d Cir. 2006).
- It was materially adverse to move an employee’s office to a different building in the same office complex, where the move isolated her from her colleagues, and made it difficult for her to complete her job duties. See Loya v. Sebelius, 840 F. Supp. 2d 245, 252-53 (D.D.C. 2012).
Some Of The California’s Labor Codes Other Anti-Retaliation Laws That Protect Employees
Please keep in mind that the following is a small subset of the employment laws that protect employees from retaliation in the workplace. The best way to see if your rights have been violated is to contact our Los Angeles Employment Lawyers for a free consultation regarding your termination.
- California Labor Code section 98.6
Protects employees against retaliation for filing or threatening to file a complaint with the California Labor Commissioner.
- California Labor Code section 230
Protects employees against retaliation for taking time off to serve on a jury provided the employee gives reasonable notice that he or she is required to serve. Also, protects an employee against retaliation who is a victim of a crime or who takes time off to appear in court to comply with a subpoena or other court order as a witness to a judicial proceeding.
- California Labor Code section 230.3
Protects employees who take time off to perform emergency duty as a volunteer firefighter, a reserve peace officer, or an officer, employee, or member of a disaster medical response entity sponsored or requested by the State.
- California Labor Code section 230.4
Protects an employee who is a volunteer firefighter, a reserve peace officer or emergency rescue personnel, and works for an employer employing 50 or more employees from being discriminated or retaliated against because he or she has taken time off to engage in fire or law enforcement training. The employee is permitted to take up to an aggregate of 14 days per calendar year for such training.
- California Labor Code section 230.5
Protects employees who are victims of certain crimes against retaliation for taking time off from work to appear in court or other official proceedings.
- California Labor Code section 232
Protects employees from retaliation for disclosing or discussing the amount of his or her wages. Discussing wages is often a method whereby employees learn of pay disparities that may be caused by gender or race.
- California Labor Code section 233
Protects employees who use accrued paid sick days for their own healthcare or for the illness of a child, parent, spouse, domestic partner, or child of the domestic partner of the employee.
- California Labor Code section 432.7
Protects the right of an applicant for employment or employee to not disclose information concerning an arrest that did not result in an actual conviction.
- California Labor Code section 432.8
Protects the rights of an applicant for employment or employee from disclosing information regarding a marijuana conviction that is older than two years.
- California Labor Code section 1024.6
An employer may not discharge an employee or in any manner discriminate, retaliate, or take any adverse action against an employee because the employee updates or attempts to update his or her personal information based on a lawful change of name, social security number, or federal employment authorization document.
- California Labor Code sections 1030-1033
Prohibits retaliation against an employee who requests a breast feeding accommodation or who attempts to express breast milk.
- California Labor Code section 1102.5
Protects employees who report their employer’s illegal activities to the government or refuse to engage in illegal activity at work from retaliation.
- California Labor Code section 2929
Prohibits discrimination because the garnishment of an employee’s wages has been threatened, or because his or her wages have been subjected to garnishment (such as for child support or taxes).
- California Labor Code section 6310
Protects employees who complain about safety or health conditions or practices at work (including complaints made under California’s Occupational Safety and Health Act (OSHA).
- California Labor Code section 6403.5
Protects employees who refuse to lift, position, or transfer a patient due to the health care worker’s concerns about patient or worker safety (including hospital workers who are asked to lift patients).
Need More Answers? Contact a Los Angeles Wrongful Termination Attorney at the Azadian Law Group, PC
If you have been the target of a wrongful termination, contact a Los Angeles wrongful termination attorney at the Azadian Law Group, PC for a free case review to find out more about your options for recovery and justice.
At the Azadian Law Group, PC, our Los Angeles Employment Attorneys exclusively represent employees – we never represent employers. This has endowed our attorneys with the insight, skills and resources necessary to:
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- Additional information about at-will employment laws in California
- The complete text of the California FEHA
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