At Spital & Associate , we are your San Diego wrongful termination attorneys. We will assist you as the employer or employee in a wrongful termination case or claim of hostile environment. You pay reasonable hourly attorney’s fees. In California, employees are often referred to as “at will.” This means if you do not have a written employment contract, there may be no reasonable expectation of secure employment, and you can be terminated “at will” by your employer. You, as a general rule, can be fired for any reason, even an unfair reason, or for no reason at all. It also means you can quit for any reason at all. This may seem unfair, but “fairness” is not the standard by which one judges whether a termination is illegal.
To be considered “wrongful termination” under the law, the termination must violate some fundamental public policy. This means a state or federal statute, regulation, or constitutional provision is violated by the termination. There are many examples. One illustration is the case in which the employer directs a worker to break a law, ordinance, regulation or statute. In that case, the employer cannot legally fire the employee for refusing such an order. Additionally, if the employee complains about what (s)he reasonably perceives as a violation of law, such as a failure to pay overtime, failure to provide lunch breaks, failure to provide family or medical leave, late-payment of salary or wages, or workplace safety issues, and is fired in retaliation for being a “whistle blower,” that would also constitute an actionable claim for wrongful termination.
Another type of public policy violation giving rise to a “wrongful termination” claim occurs when the employer’s actual reason for firing the employee is based on some form of discrimination, such as an employee’s race, religion, age, sex, disability, sexual orientation or national origin. These claims fall within the jurisdiction of the California Department of Fair Employment and Housing; after an administrative investigation or a “right to sue” letter is obtained from DFEH, one has a common law claim for wrongful termination in violation of public policy. The same applies to a termination made in retaliation for an employee’s opposition to or complaints regarding discrimination or harassment based on any of the protected classifications. For example, as your San Diego sexual harassment lawyers, if the employee complains of sexual harassment, and is then subjected to unwarranted work-related criticism, disciplined, written up, or fired, (s)he would have a claim for retaliation under both state law [DFEH] and common law.
Generally, yelling, screaming, demeaning language, or unfair workload, is not considered “unlawful” if it is based upon a personality conflict. If your supervisor treats everyone poorly, regardless of their race, religion, sex, or age, you might not have a case. Such conduct, however, will be considered illegal if the harasser is motivated by malice and/or ill will against you that is based on some protected characteristic or classification set forth above.
It is important to understand that only “unwelcome” harassment that is sufficiently severe or “pervasive” to create a hostile or abusive work environment is unlawful. Therefore, trivial or isolated harassment, even if based on some protected classification, may not be deemed unlawful. As a general rule, the more severe the incidents (i.e., physical contact is more severe than offensive language) the less frequently they need to happen before it is considered illegal. In other words, If the harassing conduct is less severe the law may require it to also be regular or constant. Since only “unwelcome” harassment is illegal, you must make it clear to the harasser that you find his/her conduct unwanted and offensive.
What are Valid Defenses?
- FAILURE TO GIVE PROPER NOTICE: The employer must provide adequate notice of the possibility of this and further performance issues so that you are reasonably aware you may be terminated from employment. There must be substantial evidence of adequate and proper warnings for the employer to establish the basis &/or the grounds for good cause.
- FAILURE TO HAVE REASONABLE RULES: The employer must have reasonable rules regarding the disciplinary action involving employee performance issues. For example, the employer should have substantial evidence that the employee’s conduct or behavior impairs or interferes with the efficient, orderly and safe operation of a business.
- INADEQUATE INVESTIGATION: Before taking disciplinary action against an employee, the employer must make a genuine effort to discover whether there was in fact a violation of a company’s rules and regulations and/or performance standards. In order for there to be substantial evidence the investigation was fair and proper, the investigation should be timely and objective, which may require independent corroboration.
- LACK OF SUFFICIENT EVIDENCE: There may only be a situation in which “he said-she said” and a serious issue arises as to whether the employer has sufficient proof in the form of substantial evidenceto conclude the employee violated or disobeyed a rule, regulation, policy, practice, procedure, etc. In any case, whoever is the witness she or he should be credible for his/her version of the facts to be relied upon.
- EVIDENCE OF DISCRIMINATION: A business must apply its rules, policies, practices and procedures in an equal way to its employees. Even the penalty or punitive action taken must be without discrimination.
- PROGRESSIVE DISCIPLINE: The disciplinary action taken by an employer should include specific steps that can be taken to improve and avoid further action. Whether it is an informal verbal communication or formal letter &/or notice of violation, suspension or termination, the employee has a vested interest in improvement and the process by which he or she can retain their employment. Also, the penalty must be reasonably related to the conduct or behavior that requires improvement. Termination should, therefore, be the “last resort” after a series of warnings regarding performance problems.
Main Offices
8880 Rio San Diego Drive, Suite 800
San Diego, CA 92108-1642
Telephone: 619-583-0350
Fax: 619-583-1850
Banker’s Hill Associate Office
1901 First Avenue, Suite 138
San Diego, CA 92101
Downtown Associate Office
Of Counsel – Bill O’Connell, Esq.
110 West C Street, Suite 1300
San Diego, CA 92101-3978
Associates available 24/7.
Call (619) 583-0350 or send us an e-mail.
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.
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There is a Statute of Limitations that bars recovery if an action is not taken within a defined period of time. Depending upon the jurisdiction or theory of the case, the time period may be different. You should consult with Spital And Associates regarding your San Diego Employment Law case. Additionally, lack of sufficient evidence or no proof will bar recovery, as in the case of (complained) conduct that never happened. Occasionally, the complaining employee is not a credible observer. It is, therefore, preferred if there are witnesses or other corroborating evidence.
