Terminating An Employee: Part Two–From An Employee’s Perspective

By: Richard E. Korb, Esq. ©2011[1]

Losing a job can be devastating.  In most cases, if you are fired, you are left to search for another job in a suffering economy.  This can leave you without a source of income for an indefinite amount of time, a reality that is especially harsh if you have a family to provide for.

In some cases, however, terminating an employee is not permitted under federal or state law.  In this event, you may sue for former employer for wrongful termination.  Generally, wrongful termination lawsuits are filed if your employer fires you illegal reasons.

In order to know if you have a basis for filing a wrongful termination lawsuit, you must first understand your rights as an employee.  These rights dictate how you should be treated at work, as well as when your employer can and cannot legally fire you.

What Rights Do I Have As An Employee?

1.  As an employee, you have the right to engage in certain activities without facing retribution at work.

Some examples include, but are not limited to:

•  Leaving work to participate in military service
•  Leaving work to vote
•  Attending jury duty
•  Reporting illegal activity being conducted at your workplace, also referred to as “whistle-blowing”
•  Take “parental leave” when expecting the birth of a newborn child

(Note: Under California law, you may take a maximum of four months of “parental leave” before the birth of your child.  You must show, however, that working would or could harm either you or your child.)

• Taking time off after giving birth or adopting a child

(Under the Family and Medical Leave Act, employees can generally take a maximum of twelve weeks off after giving birth or adopting a child. However, if you are a new employee, meaning you have spent less than 1,250 hours working for a company or been employed there for less than one year, then you do not fall under the jurisdiction of the Family and Medical Leave Act.)

• Using vacation time to attend to your medical needs, or the medical needs of your children

Moreover, under the California Paid Family Leave Act, if you use vacation time to attend to the medical needs of your children or husband/wife, you are also entitled to some compensation during your time off from work.  The California Paid Family Leave Act also allows you to collect compensation if you choose to take time off after giving birth to or adopting a child.  Under this act, you are specifically entitled to compensation for six weeks of family leave within a one-year time frame. The California State Disability Insurance Program, rather than your employer, will fund your compensation.

Under the California Paid Family Leave Act, you are not entitled to your full salary or wages during these six weeks.  Typically, you will receive about half of your usual salary or wages.   You may not receive more than 987 dollars each week, even if this is less than half of your usual salary or wages.

You also are not entitled to compensation immediately upon taking time off to attend to the medical needs of your family.  You must wait at least one week after taking time off before seeking compensation under the California Paid Family Leave Act.  Moreover, your employer may take actions that would further delay your ability to collect compensation. Specifically, your employer may legally mandate that you cannot receive compensation until using two weeks of vacation time.

You also have a legal right to refuse engage in other activities:

Some examples include, but are not limited to:

•  Refusing to take a polygraph or other similar tests.
• Choosing not to take time off if you are pregnant.

If your employer fires you for engaging or refusing to engage in the above activities, you may file a wrongful termination lawsuit.  You should present any records you have at your disposal as evidence.

2.  As an employee, you have the right to work in an environment that it is safe.

You should feel safe not only in regards to workplace conditions, but also in your interactions with other employees at your workplace.

Pursuant to The Occupational Safety and Hazard Act, your employer is required to create a work environment that is without “recognized safety hazards that are likely to cause death or serious physical harm.” If your employer does not provide such a work environment, you have the right to file a complaint. This can be done informally through your employer’s management.  However, this can also be done formally through the Occupational Safety Hazard Administration.

Under federal law, employer cannot release you from your position for notifying the Occupational Safety Hazard Administration about unsafe working conditions.  If your employer does fire you for this reason, you can file a wrongful termination lawsuit.  You should provide any records you have at your disposal, and present these as evidence during the course of your lawsuit.

Under federal law, your employer must also provide a work environment that is without sexual harassment.  If you are being sexually harassed, you should first submit a written notification to your company’s human resources department.  If this produces no results and you are still being sexually harassed, then you should submit a subsequent complaint to the Equal Employment Opportunity Commission.

Federal law also prohibits your employer from firing you for filing such a complaint.  If your employer does fire you for this reason, you can file a wrongful termination lawsuit.  You should provide any records you have of sexual harassment complaints you made, and present these as evidence during the course of your lawsuit.

You should be aware, however, that while sexual harassment is illegal in a work environment, general harassment is not.  You can still file a complaint if you feel you are being harassed, but your employer is not legally obligated to take any course of action.

3.  As an employee, you have the right to not face workplace discrimination.

Federal and California state law prevents employers from engaging in discriminatory practices.  This means employers cannot refuse to hire, promote, or give raises to employees merely because of certain inherent characteristics about them.

Under the Americans with Disabilities Act, or the “ADA”, an employer cannot fire you because you have a disability.  The exception to this rule is if you a disability that prevents you from performing the job in question.  For instance, if you are in a wheelchair, an employer does have the right not to hire for a job that requires you to perform lifting or standing. Employers are required are, however, to make reasonable accommodations for a given disability.  For instance, an employer must provide chairs with adequate back support and must give reasonable breaks to workers with carpel tunnel syndrome.

There is no one rule that fits all cases: courts normally apply a balancing test.  This test weighs the cost to the employer along with the benefits you receive as a disabled employee.  Notwithstanding, certain requirements are mandatory and are not negotiable or subject to a balancing test, such as wheelchair access.

Nondiscrimination laws do not just affect an employer’s hiring and compensation practices. An employer cannot fire you because of certain inherent characteristics about you.

For example, under federal law, you cannot be fired because of your

• Race or ethnicity.
• Gender.
• Marital Status.
• Pregnancy.
• Religious Affiliation.
• Genetics (ie, If your genetically at risk of developing a certain illness, such as cancer.)
• Being of forty years of age or older.

California law also protects you if you are homosexual, transgender, or bisexual from facing discrimination.

If you believe you fired for one of the above reasons, you can file a wrongful termination lawsuit against your former employer.  In order to win a wrongful termination lawsuit, you cannot just claim you were fired because of your race, for example.  You will need to substantiate this claim in a court of law.  One way to do this is by presenting any statements your employer made about your race or ethnicity.  Furthermore, if your employer noticeably afforded better treatment towards employees of another race than you or other employees of your same race, this behavior can also serve as evidence of discrimination in a wrongful termination lawsuit.

4.  You have the right to receive to certain compensation if you are released from your job.

Even if your employee does fire you for legal reasons, he or she is still required to follow certain protocol upon releasing you from your position.  First, your employer is required to compensate for any work that you have not yet been paid for.  This means your employer must give you a paycheck for your final time in the workplace.  This salary not only must include your salary or wages, but also must account for any vacation time you still have.  Your employer must give you financial compensation for this vacation time.  Your employer is also responsible for paying you for any overtime hours you performed, for which you have not yet received compensation.

California labor law sets strict guidelines that specify by when your employer must provide you with your final compensation.  Under California state law, you must receive your last paycheck within three days of being released from your position.  Typically, most employers will pay fired employees on their final day in the office.

If your employer does not pay you within three days, however, there are measures you can take to secure the compensation you are owed.  In this circumstance, you would not file a wrongful termination suit.  Rather, you should file a complaint under the California Department of Labor Standards Enforcement.

After reviewing your complaint, if the California Department of Labor Standards finds that your employer deliberately decided not provide you with final compensation, it will act on your behalf to force your employer to provide this compensation.  In addition to paying your final paycheck, your employer will have to pay you “continuing wages” for every day that he or she does not give you your final paycheck.  Your employer will be obligated to do so for up to thirty days after you should have received your paycheck.

Federal law also obligates your employer to continue to provide you with health insurance for a certain time period after you are released from your position.  Specifically, pursuant to the Consolidated Omnibus Reconciliation Budget Act, your employer is legally obligated to provide insurance if at least twenty people work at the business.  In the event that your employer decides to release you from your position, he or she must to continue to provide this insurance for to up to a year and a half.

If you have any questions, please contact Berkeley-Oakland-Walnut Creek attorney Richard Korb at 510-524-0903 for a  consultation.

[1] RICHARD E. KORB is a seasoned attorney with 30 years of business, real estate, civil litigation and transactional (contracts) experience. Over his legal career, Richard has successfully litigated and resolved over 300 court cases in the fields of contract law, real estate, employment, unfair competition, bankruptcy and general civil law and he has drafted and negotiated over 250 contracts and licenses for large and small companies alike. Richard leverages his experience as a former partner in a 100-person law firm and chief counsel for a public software company to assist individuals and companies, from start-ups to multi-nationals, with a broad spectrum of legal matters.  In addition to his legal practice, Richard is a court-approved mediator and serves on the Alternative Dispute Resolution (ADR) panel for both the Alameda and Contra Costs County Superior Courts.