Articles Posted in Wrongful Termination

Many workers find themselves in a situation where they believe (and often rightfully so) that they will soon be wrongfully terminated due to some type of discrimination or retaliation. Can anything be done to prevent a future wrongful termination form taking place?

Realistically, there is nothing you can do to physically prevent your employer from firing you, if they are determined to do so. Just like they can’t force you to work for them against your will, you or anyone else can’t force them to employ you for longer than they want to. However, there are several things you can do to make your potential future wrongful termination case stronger:

• Make sure you don’t give your employer any independent, lawful reasons for firing you. For instance, if you send mean / rude emails to your boss who has been retaliating against you in violation of the law, and you are terminated shorly after sending those email for some type of policy violation of verbal violence (which would be totally lawful), it will be quite hard to prove that the reason for your termination was that unlawful retaliation you were experiencing before, and not those angry emails that you sent most recently prior to your termination.

Many employers use temporary staffing agencies and recruiting agencies for hiring workers, in part, in order to insulate themselves from liability for potential discrimination, retaliation, and wrongful termination claims. They believe and are often advised that if their workers are hired through and are paid by an outside agency, then they will be off the hook for any such claims. However, this is not necessarily the case, as California law often finds “dual employment” relationship in these types of situations.

California FEHA (Fair Employment and Housing Act) that governs state discrimination and retaliation claims does not define “employee,” but the administrative agency charged with interpreting FEHA—the Fair Employment and Housing Council (FEHC)—does define the term in Gov. Code section 12935. The FEHC defines “employee” as  “any individual under the

direction and control of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written.” FEHA thus requires an employment relationship, but that relationship need not be direct. Instead, the employment relationship must show the employer’s exercise of direction and control over the employee. Direction and control may be shown by, among other factors, whether the employee must obey instructions from the employer and whether “there was a right to terminate the service at any time.”

One of employers’ most common defense in AWOL termination cases is claiming that the employee was not fired but he “automatically resigned”. The video below talks about one strategy on how this defense can be effectively defeated:

It’s important to be aware of the following three typical misconceptions that many wrongful termination claimants have, so that you don’t have the same incorrect ideas about the process of pursuing your case:

1.”This is not about money, but about justice”.  I hear this statement quite often. Clients really want to emphasize that they are not greedy and that they have a higher goal in pursuing their case. However, you must remember that whether you win your case, or lose, or settle out of court, your employer is most likely not going to admit that they made a mistake, and they are not going to apologize to you. They are also not going to be forced by court or anyone else to change their practices except for in very special circumstances. This is means that the only remedy you have for the violation committed by the employer is monetary compensation. In other words, it is about money now – it’s about you seeking monetary compensation for your job loss and any related losses. This is a perfectly legitimate goal, even if it doesn’t sound as noble as seeking “justice”.

The same applies to the idea of pursuing a case because you don’t want your employer to “get away with what they have done.” Your managers are not going to go to jail for terminating you and they are otherwise unlikely to be punished, since the employer usually believes that they are right and you are wrong, just as strongly as you believe that the opposite is true. And if they end up paying a settlement or a court verdict, their operations will continue as usual. Your case is not about punishing your former employer, but about seeking maximum reward and benefit for yourself. This is a good time to be selfish and worry about how you can benefit from your case, rather than how much you are going to make the other side lose.

Here are my top three tips on presenting your potential employment case or wrongful termination case to a lawyer:

I. Be able to explain the basics of your case in just a few sentences to capture a lawyers attention right away. For instance the following would be an excellent way to initially describe your case: “I have been employed with company x for 10 years and received mostly good reviews. 3 weeks after returning from medical leave or after filing a workers comp claim, I was terminated for not being a “team players” or based on false accusations.”  There is no reason with telling the lawyer that your case is very complicated, because  lawyers believe that “complicated” case all too often means no case.

When describing the employer’s actions against you, be specific and do not use generic adjectives. For instance, “verbal assault” or “harassment” doesn’t really tell your lawyer about what happened. But, “I am going to kill you” or “he grabbed me by my breast” gives that specific information that would be really useful to your lawyer.