What it Really Means
The most common explanation that I have to give to potential clients is the legal meaning of wrongful termination. Many of them come to me with the mistaken understanding that if they were treated and fired unfairly by their company that they have been the victim of a “wrongful termination” under the law. Many believe that because other employees were treated better, or because their boss was unreasonable, or the boss even violated their own company policies, that they were legally wronged. California is an “at-will” employment state, meaning that an employer can fire an employee at any time for any reason, or for no reason; and that an employee can quit without notice and without explanation.
Wrongful termination in California is only illegal if the termination was in violation of public policy. What does that mean? That means that an employer violated a statute or policy of the State of California in firing the employee. The primary statute of which employers run afoul is the California Fair Employment & Housing Act (“FEHA”), which can be found at Government Code, Sections 12900 et seq. FEHA prohibits discrimination, harassment and retaliation, but there is a catch. The employer’s behavior must be connected to a “protected status” recognized by California law. Currently the protected categories listed by FEHA are race, religious creed, color, national origin, ancestry, physical disability, mental disability, reproductive health decisionmaking, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or veteran or military status. However, it is not enough just to belong to a protected category (the majority of us probably fall into one or more categories), but the adverse employment action undertaken by the employer must be because of the employee’s inclusion in a protected category. I often say, “Your employer can fire a woman, they just can’t fire her because she is a woman.”
And many potential clients say, “Well, I know they looked down on me because I am an immigrant (or other category).” And I have to prod them, “But what evidence (emails, statements, witnesses, documents) can you produce to show their prejudice?” It can be difficult, because most employers just don’t come out and say, “I am firing you because you are African American.” And most don’t put it in writing either. Sometimes discrimination can be shown through disparate impact. For example, the company’s policy is to lay off everyone who has been working at the company for more than 30 years. Well, it is likely that this policy will affect people over the age of 40, implicating an age discrimination policy. Sometimes, an employee can show that all of the Latino workers were fired, but none of the Caucasian workers lost their jobs. Sometimes, there were witnesses to comments about grey hair or early bedtimes for seniors. Sometimes an employer will use racial slurs directly toward an employee which is clearly unlawful.
Another category that falls under FEHA is retaliation for engaging in a protected activity. What does this mean? One way to enter a protected category is to report a suspected violation of law to a governmental agency or a person within the company with the authority to investigate the allegations. If your employer fires an employee because they reported the suspected illegal activities, the employer has engaged in unlawful retaliation. Another way to gain a protected status is if an employee reports a discriminatory act (even against someone other than the employee who reported it) or participates in an investigation of a discriminatory act. If the employer retaliates against that person, it is a violation of law.
In conclusion, many workers feel mistreated by their employers. Certainly, many employers have taken advantage of the fact that their employees desperately need their jobs to survive. But in California, it is not illegal to be a bad boss unless that boss engages in discrimination or retaliation based upon a protected category.
