Wrongful termination happens when an employment relationship is ended by an employer in violation of the employee’s legal rights.1 In California, wrongful termination claims can arise when an employer violates a state or federal statute,2 general principles of public policy,3 the worker’s employment contract,4 or some other aspect of the law.5
California law provides comprehensive workplace protections for employees, some of which govern how, when, and under what circumstances an employee may legally be terminated. This article will take a closer look at these protections, and explain when an employer commits wrongful termination under California state law.
- 1 Which Workers Are “Employees” under the Law?
- 2 Employees in California Usually Work on An “At-Will” Basis
- 3 Employers May Not Engage in Unlawful Discrimination
- 4 Employers May Not Engage in Unlawful Retaliation
- 5 Employers May Not Fire Workers for Taking Protected Time Off
- 6 Employers May Not Fire Workers in Violation of Public Policy
- 7 Special Types of a Wrongful Termination Claims
- 8 Steps To Take When You Have Been Terminated
- 9 Damage Awards in Wrongful Termination Lawsuits
Which Workers Are “Employees” under the Law?
In California, only an employee can file a claim or lawsuit against their employer for wrongful termination.6 This is because a wrongful termination claim requires an employer to end the employment relationship.7
The exact definition of the word “employee” will depend on the type of harm that the worker has alleged. But, in most cases, a worker will be considered an employee if they work under the supervision, direction, and control of an employer.8
Employees differ from workers who are considered “independent contractors.” An independent contractor is someone who provides a business with a specific product or service, but the business generally has no right to control the means by which that result is accomplished.9
In short, the more control an employer or supervisor exercises over the way a worker performs their tasks, the more likely the worker is to be considered an employee by the courts.10
Workers who are not employees (like independent contractors or immediate family members11) might have a claim against a business for breach of contract or a violation of some other law.12 But ending a business relationship in which neither party is an employee would not technically qualify as a “termination” for these purposes.
Employees in California Usually Work on An “At-Will” Basis
Most employees in California are considered to be “at-will” employees. At-will employment means that the employee is free to leave their jobs at any time and employers are likewise free to fire the employee at any time for any lawful reason—or even no reason at all.13
Employment in California is presumed to be at-will, unless there is a specific contractual relationship between the employer and employee that limits the employer’s ability to fire the employee.14 Under normal circumstances, both the employee and the employer have a right to end the employment relationship, unless doing so would be unlawful.15
Employers Don’t Need a Good Reason to Terminate At-Will Employees
At-will employees can leave employment at any time. Likewise, employers can fire at-will employee for seemingly arbitrary reasons, so long as those reasons are not unlawful.16 This can lead to some confusing results.
Many employees believe that their job is protected unless they break the rules, do a bad job, or commit some other type of wrongdoing. But that usually isn’t the case.
At-will employment means that an employer can simply decide to fire the employee on a whim, without any good reason, even when the employee is doing a good job.17
For example, an employer might be in a bad mood one day, and decide to fire a random at-will employee. There is nothing inherently unlawful about doing that (even if it was an unwise business decision). As such, the fired employee probably cannot claim that they were wrongfully terminated.
But Employers Can’t Fire Employees for Unlawful Reasons
Even though employers don’t need a good reason to terminate an at-will employee, they are prohibited from terminating employees for unlawful reasons. Examples of unlawful reasons include:
- Firing an employee because of their race, gender, disability, sexual orientation, religion, or other protected characteristic;18
- Firing an employee for their political beliefs or affiliations;19
- Firing an employee because the employee requested time off that they are legally-entitled to take;
- Firing an employee because the employee reported a violation of the law;20 or
- Firing an employee for reasons that violated public policy.21
Put simply: Employers can fire at-will employees for any lawful reason (or no reason at all), but they can’t fire employees if they are motivated by unlawful reasons.
Employment Contracts Sometimes Play a Role
Of course, not all employees are considered “at-will.” Some employees have contracts that limit their employer’s ability to fire them.22 In these situations, employees might be able to claim that they were wrongfully terminated merely because their employer lacked a good reason to fire them.
For example, when an employer agrees to hire an employee for a specific period of time, but doesn’t specify the circumstances under which the employment can be terminated, the employee can only be terminated under three circumstances:
- The employee willfully breaches one of his or her employment duties,
- The employee is habitually neglectful of his or her employment duties, or
- The employee is unable to perform his or her employment duties for some reason.23
These kinds of employment contracts can be entered into verbally or in writing. But the agreement must unambiguously specify that it is for a set period of time.24
A contract can also limit the employer’s ability to fire the employee if it requires the employer to have a good reason for the termination. For example, the employment contracts of company executives commonly have provisions that limit the circumstances under which they can be fired.
Likewise, employees who are part of a union are usually not “at-will” employees. Unions normally negotiate an employment contract that permits only “for cause” terminations.25 This means that employees may only be let go if the employer has a good reason.
For these reasons, it is important for employees to examine their employment contract (if they have one) when they are fired.
Employers May Not Engage in Unlawful Discrimination
One of the most common grounds for a wrongful termination claim arises when the employer has a discriminatory intent in firing the employee. In California, there are a variety of laws that prohibit discrimination in the workplace.
The most important anti-discrimination law for California employees is the Fair Employment and Housing Act (known as “FEHA”).28 It prohibits employers that have five or more employees29 from discriminating against employees on the basis of their:
- Age, if the employee is over the age of 40;
- Race, color, national origin, or ancestry;
- Physical or mental disability;
- Medical condition;
- Genetic information;
- Marital status;
- Sex, gender, gender identity, or gender expression;
- Sexual orientation; or
- Military or veteran status.30
An employer cannot target an employee for termination for any of these characteristics.31 And an employer may not create a work environment in which being a member of a protected class automatically puts a worker at a disadvantage or excludes them from something.32
Likewise, an employer may not harass a member of a protected class for being part of that class.33 And the employer may not create or maintain a hostile work environment that leaves the class member with no option than to quit the job.34
Of course, there are many caveats to these rules. To learn more about California’s anti-discrimination laws, please review our article: Discrimination Laws in the California Workplace, Explained.
Although FEHA is California’s broadest anti-discrimination law, various other laws in California also prohibit discrimination. A few of those are explored below.
All persons, regardless of their immigration status, are protected by California’s employment laws.35 That does not mean, however, that immigration-based discrimination is unlawful. It merely means that non-citizens are protected against discrimination to the same extent as United States citizens.36
In fact, employers are prohibited by law from hiring or continuing to employ undocumented immigrants.37 So, to some extent, employers are required to consider an employee’s immigration status.
The employer’s ability to investigate their employees’ legal status is limited, however. They may not request more or different documents than are required by the federal government.38 Nor may they refuse to honor immigration-related documents that reasonably appear to be genuine.39
And, if the employee is present in the United States legally, and the employer nevertheless discriminates against them on the basis of their status as an immigrant, the employer may have engaged in national origin discrimination.
It is unlawful for employers to discriminate against an employee based on their national origin.40 National origin discrimination can include discrimination against those holding the type of driver’s license that California gives to non-citizens.41
Additionally, employers are prohibited from reporting or threatening to report their employees’ citizenship or immigration status in retaliation for the employee’s exercise of an employment-related right.42
In some cases, an employer commits wrongful termination if they fire their employee for speaking a different language in the workplace.
In general, it is unlawful for employers to limit or prohibit the use of any language in any workplace.43 These issues commonly arise when an employer adopts an English-only requirement in their workplace.
The purpose of rule prohibiting language discrimination is to prevent employers from adopting policies that effectively discriminate against employees based on national origin.44
As with many laws, there is an important exception to the rule prohibiting language discrimination. An employer may limit or prohibit the use of a language in the workplace if:
- The language restriction is justified by a business necessity,
- The employer has notified its employees of when the language restriction is required to be observed,
- The employer has notified its employees of the consequences of violating the language restriction, and
- There is no alternative practice to the language restriction that would accomplish the business purpose equally well with a lesser discriminatory impact.45
A language restriction is considered a business necessity when it is needed to ensure the safe and efficient operation of the business. The language restriction must also effectively fulfills the business purpose it is supposed to serve.46
An employer can commit wrongful termination if they fire an employee for their political views or activities. California law prohibits employers from controlling their employees’ political activities.47 This means that an employer may not punish an employee for being a member of a specific political party. Nor may employers forbid employees from going to political rallies or becoming candidates for public office.
Employers are also prohibited from trying to coerce or influence their employees to take any sort of political action.48 And employers are prohibited from retaliating against employees who oppose such practices.49
Political discrimination can be serious. In some cases, it is criminally punishable as a misdemeanor.50 There are also fines, fees, and civil damages that can be imposed against the employer (and sometimes recovered by the employee).51
Discrimination Against Victims of Crimes
Victims of crimes often have a right to be free from discrimination from their employer. Specifically, employers may not discriminate against employees who need to appear in court as a witness in a crime that they were the victim of.52
Nor may employers discriminate against an employee because of the employee’s status as a victim of domestic violence, sexual assault, or stalking.53
The victims of domestic violence, sexual assault, or stalking also have a right to take time off work to obtain a restraining order against the perpetrator of the crime.54 Employers may not terminate employees for doing so.
In general, employees who have been the victims of crimes must give their employer reasonable advance notice of their intention to take time off work to obtain a restraining order or to be a witness in a court proceeding.55
Sometimes providing an advance notice of an absence to the employer isn’t feasible, like when an emergency restraining order is required. In those cases, the employee may need to provide documentation to their employer if they want to be protected from discrimination for taking the time off work.56
Depending on other factors, like the nature of the crime or the size of the employer, the victims of crimes may have several other rights. Examples include:
- The right to attend judicial proceedings related to that crime;57
- The right to seek medical attention for injuries;58
- The right to obtain psychological counseling related to the crime;59 and
- The right to obtain services from a shelter, program, or crisis center.60
In many cases, employers must permit employees to take time off to do these things.
Employers May Not Engage in Unlawful Retaliation
All California employers have legal obligations they must follow. When they violate the law in some way, employees may wish to complain about or report the employer’s wrongdoing. In many cases employees are protected from being punished or fired if they do so.
This section explores the different kinds of retaliation that may result in a valid claim of wrongful termination.
Reporting Unlawful Activities
In California, if an employee reasonably believes that the employer has violated a law or regulation, the employee has a right to report that violation to the government. The employee also has a right to report that violation to an employee that supervises them.61
Employers are prohibited from punishing or firing employees for disclosing information about a legal violation to the government, a law enforcement agency, or their supervisor.62
Along these same lines, an employer cannot prohibit employees from working with or testifying before any government agency that may be investigating or prosecuting the employer for legal violations.63
Finally, employers cannot fire or punish employees for refusing to participate in unlawful activities.64
An employer who discharges an employee for reporting unlawful activities commits wrongful termination.
Discrimination and Harassment Complaints
Employers are prohibited from firing or punishing employees who complain about, report, or otherwise oppose unlawful discrimination or harassment.65
An employer who fires an employee for opposing unlawful discrimination or harassment has committed wrongful termination.
Complaining About Unpaid Wages
Employees have a right to file a complaint with California’s Labor Commissioner when they believe they have been underpaid.66 This right would be meaningless if employers were allowed to fire employees who file such complaints.
California law prohibits employers from terminating, discharging, or in any manner retaliating against employees who file a wage and hour complaint with the Labor Commissioner.67
Additionally, employees have a right to complain to their employer that they are owed unpaid wages. Even if no claim is filed with the Labor Commissioner, employers are prohibited from terminating, discharging, or in any manner retaliating against employees for complaining about unpaid wages.68
To learn more about wage claims with the Labor Commission, please review our article: How to File a Wage & Hour Claim in California.
Employees have a right to discuss the amount of their wages with other employees. Employers are prohibited from firing their employees for disclosing the amount of their wages to anyone.69
Complaining About Unlawful Work Conditions
Employers are prohibited from firing or punishing employees who complain about workplace safety issues.70 Employers are also prohibited from firing or punishing employees who reporting an issue of employee safety or health to a government agency.71 This means that employees cannot be fired for filing an OSHA complaint.
Additionally, employers usually cannot fire or punish an employee who refuses to perform work that would violate any occupational safety or health standard.72 And employees are protected if they have to testify in a court proceeding about dangerous work conditions.73
Discussing Work Conditions
Employees have a right to discuss their work conditions—as long as those discussions don’t involve matters that may be trade secrets or legally-protected.74
In keeping with this right, employers are prohibited from terminating employees for disclosing information about their working conditions to other people.75 Again, this rule is limited to information that is not proprietary, secret, or otherwise legally-protected.
This rule is mainly intended to protect employees who complain or discuss potentially unsafe or unlawful working conditions.
Requesting a Reasonable Accommodation
Several types of employees have a right to receive a reasonable accommodation from their employer. A reasonable accommodation is an adjustment to the employee’s work environment or job duties that can enable the employee to perform the essential functions of a job in suitable conditions.
Common examples of situations in which a reasonable accommodation may be required include the following:
- Employees with disabilities often have a right to work under different conditions than other employees.76
- Religious employees may have a right to an accommodation of their religious practices and observances.78
- Employees who have difficulty reading may have a right to a reasonable accommodation.79
- Employees with substance abuse problems may have a right to a reasonable accommodation for them to participate in an alcohol or drug rehabilitation program.80
They may also have a right to time off of work, as an accommodation for their disability.77
Employers generally cannot retaliate against employees in these situations for requesting an accommodation. This means that an employer will usually commit wrongful termination if they discharge an employee for requesting or requiring a reasonable accommodation.
Filing a Workers’ Compensation Claim
Under California law, it is the state’s policy “that there should not be discrimination against workers who are injured in the course and scope of their employment.”81 California courts have interpreted this policy to protect employees from retaliation for filing a workers’ compensation claim.82
The broad nature of that policy favors employees who are fired or treated unfairly as the result of a job-related injury.83 In general, an employer commits wrongful termination if they fire an employee in retaliation for filing a workers’ compensation claim.
Employers May Not Fire Workers for Taking Protected Time Off
There are many situations in which employees have a legal right to take time off from work. When an employer fires an employee for taking that time off, they usually will commit wrongful termination. This chapter explores the most common types of leave that employees have a right to take.
Family and Medical Leave
Many employees in California have a right to take up to 12 workweeks of unpaid family or medical leave per year.84 When an employee has a right to take family or medical leave, the employer is prohibited from firing them for exercising it.85
To be eligible for family or medical leave, the following requirements must be met:
- The employer has at least 50 employees within 75 miles of the employee’s worksite;86
- The employee worked more than 12 months for the employer prior to the date that the period of leave is taken;87
- In the past 12-month period, the employee worked at least 1,250 hours for the employer;88 and
- The employee or a member of the employee’s immediate family: experiences a serious health condition, gives birth to a child, adopts a child, or takes in a foster child.89
An immediate family member for these purposes includes the employee’s parents, spouse, and children.90
A serious health condition is an illness, injury, impairment, physical condition, or mental condition that involves inpatient care or continuing treatment.91
An employer who fires an employee for taking or requesting this kind of leave commits wrongful termination (as long as the employee was eligible).92
New mothers and fathers have a right to take the family and medical leave discussed above. That leave is usually taken to bond with the new child. But pregnant mothers also have a right to take a different kind of leave: pregnancy disability leave.93
Employees that are disabled by their pregnancy, by childbirth, or a related medical condition have a right to take up to four months of leave from work.94 This leave can be take in addition to the 12-weeks of bonding time described above,95 but it only continues for as long as the employee is disabled.96
To be eligible for pregnancy disability leave, the employee must work for an employer that regularly employs five or more employees.97
A woman is disabled by her pregnancy if, in the opinion of her doctor, she is unable to perform any one or more of the essential functions of her job because of her pregnancy.98 A woman might also be disabled by her pregnancy if she suffers from one or more of the following conditions:
- Severe morning sickness,
- Prenatal or postnatal care,
- The need for bed rest,
- Gestational diabetes,
- Pregnancy-induced hypertension,
- Post-partum depression,
- Loss or end of pregnancy, and
- Recovery from loss or end of pregnancy.99
The common factor with each of these examples is that the pregnancy-related disability has limited a major life activity.100
If an employee has a legal right to take pregnancy disability leave and they are fired for taking it, the employee probably has a claim for wrongful termination.101
Some employers provide sick leave even when they aren’t required by law to do so. California law prohibits employers from firing employees for using sick leave they have accrued.102
More accurately, if an employer provides sick leave and the employee has accrued a sick leave entitlement, the employer is required to permit their employee to take that sick leave to diagnose, care, or treat an existing health condition of the employee or their family member.103
Employers can, however, limit the amount of sick leave taken at any given time to that which would be accrued by the employee during a six-month period.104
Employers can commit wrongful termination by firing an employee who has requested or expressed a desire to take a lactation break.
A lactation break is a period of time during the work day for nursing mothers to express breast milk (i.e., a break to pump). Both state and federal laws require California employers to provide lactation breaks.105
The right to a lactation break does not apply if it would seriously disrupt the operations of the employer.106 This exception is hard to meet, however, and employers should be cautious before invoking it.
Time Off to Vote
All employers in California are required to permit their employees time off to vote in any statewide election.107 This rule applies if the employee will not have sufficient time outside of working hours to vote.108
Employers can require that the employee take the time off to vote either at the beginning or end of the regular working shift.109 And the employee can be required to give at least two working days of notice for the necessary time off.110
Time Off for Military Leave
An employer may not punish or fire an employee for joining the military or requiring less than five years of time off to serve.113 Additionally, when the employee returns from leave, the employer may not fire the employee without cause for one year (if the employee’s period of service was more than 180 days).114
Time Off for Jury Duty
California employees are sometimes required to participate in jury duty. In addition to being a civic duty, jurors are often required by law to attend court proceedings. As such, employers are prohibited from firing or in any manner discriminating against employees who need time off to serve on a jury.115
Importantly, however, the employer can require the employee to give reasonable notice that they will be required to serve.116
Parents and School-Related Activities
Parents who are employees of large employers have a right to take up to 40 hours each year off for the purpose of certain child-related activities.117 A “large employer” for these purposes is an employer that employs 25 or more people.
Protected child-related activities include:
- Finding a school in which to enroll the child,
- Participating in activities of the school, and
- Handling school emergencies.118
Employees must usually give a reasonable notice to their employer if they wish to take this time off. And sometimes the employer can limit the amount of time that the employee takes off to eight hours in a calendar month.119
Additionally, under certain circumstances, employers of all sizes are prohibited from firing parents for taking time off to appear at the school of their child if the child has been suspended and the teacher requests a meeting.120 The parent must give reasonable notice to the employer that he or she is requested to appear in the school.121
Employers May Not Fire Workers in Violation of Public Policy
Sometimes an employer will fire someone for reasons that don’t technically violate the law, but the employer has nevertheless violated a fundamental public policy. In those cases, the employee might still have a claim for wrongful termination.122
The idea behind these kinds of claims is that employers are required, at a minimum, to know the fundamental public policies of the state and nation as expressed in their constitutions and statutes.123
There are a variety of actions that can constitute a violation of public policy in California. The courts have laid out four basic requirements:
- The policy must be supported by either constitutional or statutory provisions;
- The policy must benefit society at large, rather than serving merely the interests of the individual employee;
- The policy must have been well-established at the time the employee was fired; and
- The policy must be fundamental and substantial.124
The most obvious example of a termination that violates public policy would be when an employer fires an employee for refraining to do something harmful or illegal.125 Likewise, an employer might violate public policy if they fire an employee for refusing to sign an illegal or unenforceable contract.126
There are, of course, many types of terminations that might violate public policy in the State of California. If you are unsure whether you have been terminated in violation of public policy, discuss your case with a qualified employment lawyer.
Special Types of a Wrongful Termination Claims
The sections above described the most common types of wrongful termination cases in California. Sometimes, however, employees face unique issues in fighting their wrongful termination case.
To succeed in a lawsuit, employees are generally required to show the employer was motivated by an unlawful reason when they terminated the employee.127 The problem in many cases is that an employer’s motivations will not always be clear.
In some cases, the employer will be motivated in part by legitimate business reasons, but will also be motivated by improper reasons. In other words, an employer can have several motivations for taking a negative employment action against an employee. These are called mixed-motive cases.128
In a mixed-motive case, the discriminatory intent must have been a “substantial motivating factor” in the negative employment action taken against the employee.129 It is not enough for the employee to merely show that the discrimination was a motivating factor, it must have been a substantial motivating factor.
An employee is not required to prove that the discriminatory motivation was the sole motivation behind a negative employment action. The employee is only required to show that there was a causal connection between the employee’s disability and the action.130
An employer can reduce its liability if it can show that a legitimate, non-discriminatory motive alone would have led it to make the same decision anyway, regardless of the discrimination.131
This would not necessarily mean that the employer would be off the hook, however. The employee might still be entitled to attorney fees and costs, as well as certain types of non-monetary awards—but, again, only if they could show that the discrimination was a substantial motivating factor in the termination.132
Constructive Discharge Cases
Employees generally cannot sue their employer for wrongful termination if they voluntarily resign or quit (although they might have other grounds for a lawsuit). This creates a perverse incentive for employers who want to fire employees: they can avoid wrongful termination lawsuits if they can somehow get the employees to quit first.133
To combat this problem, courts in California have adopted the doctrine of constructive discharge. Constructive discharge occurs when the employer’s conduct effectively forces an employee to resign.134
In a constructive discharge case, the employee might technically say “I quit,” but the employment relationship is treated as having been ended involuntarily by the employer’s acts, against the employee’s will. Courts will therefore treat the resignation as a firing.135
To amount to a constructive discharge, the employer must create a work environment that is so intolerable that any reasonable employee would resign rather than endure such conditions.136 Put another way, the employer’s actions or the conditions of employment must effectively leave the employee with no reasonable alternative except to quit.
This test is an objective one. Meaning, it is judged from the perspective of a reasonable person—not from the perspective of the individual employee. And the worker must usually prove that the employer either intentionally created or knowingly permitted the intolerable working conditions.137
It’s important to remember that the doctrine of constructive discharge has strict limitations. Employees should not rely in it when deciding whether to quit. In fact, the California Supreme court has specifically warned that “an employee cannot simply ‘quit and sue,’ claiming he or she was constructively discharged.”138
Rather, the doctrine of constructive discharge should only be considered by employees after the employment relationship has ended, to determine whether they have any rights they might have previously overlooked.
Steps To Take When You Have Been Terminated
Wrongful termination could come as a shock, or it could be a long time coming. Either way, some helpful tips are listed below. When reading them, please keep in mind that this article does not contain legal advice and should not be relied on.
Even though you may be angry, in shock, or scrambling to figure out what to do, document what happened, why you were terminated, what your employer did or said, and in what manner you were terminated.
If you are unable to gather any formal documents or evidence, simply writing a detailed account of the events soon after they have happened can help.
These facts will be important for determining whether you have been wrongfully terminated. And, if your case ever goes to court, your notes can help you refresh your memory when explaining your case.
Review the Employment Contract
If you have a contract or an agreement, review it to determine whether it limits the circumstances under which you can be fired. Your employer may be in violation of the contract, even if you are given what seems to be a lawful reason to terminate employment.
It is understandable to be angry over the injustice of being wrongfully terminated. However, acting out against your employer and using uncivil language will make it harder to recover damages later.
If you have been terminated from a hostile environment, depart safely and quickly. You are not required to stick around after you have been terminated. Additionally, unless you have a contract or employment agreement that mandates it, you are not legally required to have an exit interview or have a final meeting with anyone.
It may be tempting to “get back” at your employer by stealing things, badmouthing the company, destroying property, or publicly humiliating supervisors or the company. But even if you were fired for unlawful reasons, committing crimes and legal violations against your employer will make it much more difficult to collect damages in a lawsuit.
Contact a Lawyer
The best time to contact a lawyer is before termination happens, when you suspect that you may be wrongfully terminated in the near future. Unfortunately, wrongful termination isn’t always easy to foresee.
The second best time to contact an attorney is immediately after termination if you know or suspect that you have been wrongfully terminated.
Wrongful termination can have far-reaching consequences, and you may be able to recover if your employer has terminated you for unlawful reasons.
File a Claim or Lawsuit
If the evidence in your case is strong, you may have a right to recover damages against your employer. You might even have a right to get your job back.
The exact procedure will depend on the type of harm you suffered. In some cases, the employee is required to first file an administrative complaint with a governmental agency that explains their employer’s wrongdoing. In other cases, the employee can go directly to court and file a lawsuit.
Keep in mind that the deadline to file a claim or a lawsuit can be short. As such, it is best to act quickly after you have been fired if you wish to stand up for your rights.
Again, discussing your case with a qualified attorney can be a good idea to help you understand: how quickly you must file your claim or lawsuit, which procedures you must follow, and whether your case is strong. Many attorneys are willing to take on wrongful termination cases with no upfront costs.
Damage Awards in Wrongful Termination Lawsuits
In the case of wrongful termination, an employee may get compensatory damages, punitive damages, or in some cases, reinstatement to his or her former job.
Compensatory damages are a type of monetary award intended make the employee “whole” again.139
This type of damage award can include pay for the employee’s missed wages, back pay for unpaid wages (if any), or other compensation for harm the employee experienced as a result of being wrongfully terminated. Depending on the circumstances, it might also include damage for emotional distress or mental suffering.140
This type of award is usually roughly equal to what the employee would have received if he or she had not been fired. It might also include interest on the employee’s award.
In many cases, employers who lose a wrongful termination lawsuit are required to pay for the legal costs of the employee’s case.141 Those can include expert witness fees, attorney fees, and court costs.
Punitive damages are a type of monetary punishment ordered by the court. On top of quantifiable damages, such as lost pay and legal fees, the court may punish a defendant by making him or her pay additional damages.142
Punitive damages are usually only awarded when the defendant did something that was particularly heinous or offensive. They can serve to deter the defendant from committing the same act in the future, or deter others who are in similar situations as the defendant from engaging in the same wrongful behavior.
In some cases, an employee may be able to either get his or her old job back, or a similar position of the same seniority.143
This specific remedy, however, is somewhat rare in wrongful termination lawsuits and may not be available or even desirable for the employee. When reinstatement isn’t available due to hostility between the parties, courts will sometimes award front pay—the employee’s projected future earnings.144
Weinbaum v. Goldfarb (1996) 46 Cal.App.4th 1310, 1315 [a wrongful termination claim arises out of “the employer’s improper discharge of an employee” in an “employer-employee relationship”].Footnote 1
E.g., Gov. Code, § 12940 [California’s Fair Employment and Housing Act, which prohibits certain types of discriminatory firing]; 42 U.S.C. § 2000e–2000e-17 [The Civil Rights Act of 1964, a federal law that prohibits certain types of discriminatory firing].Footnote 2
Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 170 [“[W]hen an employer’s discharge of an employee violates fundamental principles of public policy, the discharged employee may maintain a tort action and recover damages traditionally available in such actions.”].Footnote 3
Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 336 [the parties in an employment relationship “are free to define their relationship, including the terms on which it can be ended, as they wish”].Footnote 4
E.g., Jersey v. John Muir Medical Ctr. (2002) 97 Cal.App.4th 814, 821 [“A discharge for the exercise of a constitutionally conferred right, no less than the exercise of a statutory right, may support a wrongful termination action in violation of public policy.”].Footnote 5
Khajavi v. Feather River Anesthesia Medical Group (2000) 84 Cal.App.4th 32, 38 [“Only an employer can be liable for the tort of wrongful discharge of an employee . . . .”]; Casella v. SouthWest Dealer Services, Inc. (2007) 157 Cal.App.4th 1127, 1140, fn. 4 [“to establish wrongful termination in violation of public policy, [the plaintiff] had to prove . . . he was employed”].Footnote 6
Weinbaum v. Goldfarb (1996) 46 Cal.App.4th 1310, 1315.Footnote 7
Cal. Code Regs., tit. 2, § 11008, subd. (c) [“‘Employee.’ 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.”]; Labor Code, § 3351 [“‘Employee’ means every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed . . . .”]; Industrial Indem. Exchange v. Industrial Acci. Com. (1945) 26 Cal. 2d 130, 135 [“The right to control and direct the activities of the alleged employee or the manner and method in which the work is performed, whether exercised or not, gives rise to the employment relationship.”].Footnote 8
Muth v. Urricelqui (1967) 251 Cal.App.2d 901, 910.Footnote 9
Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168, 175.Footnote 10
Cal. Code Regs., tit. 2, § 11008, subd. (c).Footnote 11
See Labor Code, § 3353 [defining “independent contractor”].Footnote 12
Labor Code, § 2922 [“An employment, having no specified term, may be terminated at the will of either party on notice to the other.”]; Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 678 [“[A] contract for permanent employment, for life employment, for so long as the employee chooses, or for other terms indicating permanent employment, is interpreted as a contract for an indefinite period terminable at the will of either party . . . .”].Footnote 13
Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1386 [“This presumption of at-will employment may be rebutted only by evidence of an express or implied agreement between the parties that the employment would be terminated only for cause.”].Footnote 14
Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 396 [“An at-will employment may be ended by either party ‘at any time without cause,’ for any or no reason, and subject to no procedure except the statutory requirement of notice.”].Footnote 15
Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 857–858 [overruling a summary judgment motion by the defendant employer in a case where there were issues of fact as to whether the employer used an arbitrary reason to fire the plaintiff capriciously when the true motive to fire the plaintiff was his age].Footnote 16
Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 396.Footnote 17
Gov. Code, § 12940, subd. (a).Footnote 18
Labor Code, § 1101.Footnote 19
Labor Code, § 1102.5.Footnote 20
Labor Code, §§ 96, subd. (k), 98.6, 6310.Footnote 21
See, e.g., Cotran v. Rollins Hudig Hall Internat., Inc. (1998) 17 Cal.4th 93, 96, fn. 1 [“Wrongful termination claims founded on an explicit promise that termination will not occur except for just or good cause may call for a different standard, depending on the precise terms of the contract provision.”].Footnote 22
Labor Code, § 2924 [“An employment for a specified term may be terminated at any time by the employer in case of any willful breach of duty by the employee in the course of his employment, or in case of his habitual neglect of his duty or continued incapacity to perform it.”].Footnote 23
Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 969–970.Footnote 24
Pugh v. See’s Candies, Inc. (1981) 116 Cal.App.3d 311, 320 [“Under most union contracts, employees can only be dismissed for ‘just cause,’ and disputes over what constitutes cause for dismissal are typically decided by arbitrators chosen by the parties.”].Footnote 25
Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 396.Footnote 26
Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 857–858.Footnote 27
Gov. Code, § 12940, subd. (a); Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 638 [“The broad purpose of the FEHA is to safeguard an employee’s right to seek, obtain, and hold employment without experiencing discrimination on account of race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, or age.”].Footnote 28
Gov. Code, §§ 12926, subd. (d), 12940, subd. (a); Cal. Code of Regs., tit. 2, § 11008, subd. (d).Footnote 29
Gov. Code, § 12940.Footnote 30
Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 195 [“In order to prevail under the disparate treatment theory, an employee must show that the employer harbored a discriminatory intent.”].Footnote 31
Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 129 [“To prevail on a theory of disparate impact, the employee must show that regardless of motive, a facially neutral employer practice or policy, bearing no manifest relationship to job requirements, in fact had a disproportionate adverse effect on certain employees because of their membership in a protected group.”].Footnote 32
Gov. Code, § 12940, subd. (j).Footnote 33
Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608.Footnote 34
Labor Code, § 1171.5, subd. (a).Footnote 35
Labor Code, § 1171.5, subd. (a).Footnote 36
8 U.S.C. § 1324a(a).Footnote 37
Lab. Code, § 1019.1, subd. (a)(1).Footnote 38
Lab. Code, § 1019.1, subd. (a)(2).Footnote 39
Gov. Code, § 12940, subd. (a).Footnote 40
Gov. Code, § 12926, subd. (v); Veh. Code, § 12801.9.Footnote 41
Labor Code, § 244.Footnote 42
Gov. Code, § 12951, subd. (a).Footnote 43
Turner, Public Entities, Officers, and Employees: Chapter 295: Codification of California’s Fair Employment and Housing Commission Regulations Governing Workplace Language Policies (2002) 33 McGeorge L.Rev. 433, 439.Footnote 44
Gov. Code, § 12951.Footnote 45
Gov. Code, § 12951, subd. (b).Footnote 46
Labor Code, §§ 1101, 1102; see also Labor Code, § 96, subd. (k).Footnote 47
Labor Code, § 1102.Footnote 48
Labor Code, § 1102.5.Footnote 49
Labor Code, § 1103 [“An employer or any other person or entity that violates this chapter is guilty of a misdemeanor punishable, in the case of an individual, by imprisonment in the county jail not to exceed one year or a fine not to exceed one thousand dollars ($1,000) or both that fine and imprisonment, or, in the case of a corporation, by a fine not to exceed five thousand dollars ($5,000).”].Footnote 50
Labor Code, §§ 1102.5–1105.Footnote 51
Labor Code, § 230, subd. (b) [” An employer shall not discharge or in any manner discriminate or retaliate against an employee, including, but not limited to, an employee who is a victim of a crime, for taking time off to appear in court to comply with a subpoena or other court order as a witness in any judicial proceeding.”].Footnote 52
Labor Code, § 230, subd. (e) [“An employer shall not discharge or in any manner discriminate or retaliate against an employee because of the employee’s status as a victim of domestic violence, sexual assault, or stalking, if the victim provides notice to the employer of the status or the employer has actual knowledge of the status.”].Footnote 53
Labor Code, § 230, subd. (c) [“An employer shall not discharge or in any manner discriminate or retaliate against an employee who is a victim of domestic violence, sexual assault, or stalking for taking time off from work to obtain or attempt to obtain any relief, including, but not limited to, a temporary restraining order, restraining order, or other injunctive relief, to help ensure the health, safety, or welfare of the victim or his or her child.”].Footnote 54
Labor Code, § 230, subd. (d).Footnote 55
Labor Code, § 230, subd. (d).Footnote 56
Labor Code, §§ 230.2, subd. (b), 230.5.Footnote 57
Labor Code, § 230.1, subd. (a)(1).Footnote 58
Labor Code, § 230.1, subd. (a)(3).Footnote 59
Labor Code, § 230.1, subd. (a)(2).Footnote 60
Labor Code, § 1102.5, subd. (a); Health & Saf. Code, §§ 1596.881, 1596.882.Footnote 61
Labor Code, § 1102.5, subd. (a).Footnote 62
Labor Code, § 1102.5, subd. (b).Footnote 63
Labor Code, § 1102.5, subd. (c) [“An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.”].Footnote 64
Gov. Code, § 12940, subd. (m) [“For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.”]; Labor Code, § 1197.5.Footnote 65
Labor Code, § 98, subd. (a); Post v. Palo/Haklar & Associates (2000) 23 Cal.4th 942, 946 [“[I]f an employer fails to pay wages in the amount, time, or manner required by contract or statute, the employee may seek administrative relief by filing a wage claim with the commissioner or, in the alternative, may seek judicial relief by filing an ordinary civil action for breach of contract and/or for the wages prescribed by statute.”].Footnote 66
Labor Code, § 98.6, subd. (a).Footnote 67
Labor Code, § 98.6, subd. (a).Footnote 68
Labor Code, § 232, subd. (c) [“No employer may do any of the following: . . . (c) .Discharge, formally discipline, or otherwise discriminate against an employee who discloses the amount of his or her wages.”].Footnote 69
Labor Code, § 6310, subd. (a).Footnote 70
Labor Code, § 6310, subd. (a).Footnote 71
Labor Code, § 6311.Footnote 72
Labor Code, §§ 1102.5, 6399.7.Footnote 73
Labor Code, § 232.5.Footnote 74
Labor Code, § 232.5, subd. (c).Footnote 75
Gov. Code, § 12940, subd. (a), (m); Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54 [“In addition to a general prohibition against unlawful employment discrimination based on disability, FEHA provides an independent cause of action for an employer’s failure to provide a reasonable accommodation for an applicant’s or employee’s known disability.”].Footnote 76
Cal. Code Regs., tit. 2, §§ 11065, subd. (p)(2)(M), 11068, subd. (c).Footnote 77
Gov. Code, § 12940, subd. (l).Footnote 78
Labor Code, §§ 1041–1044.Footnote 79
Labor Code, § 1025–1028.Footnote 80
Labor Code, § 132a.Footnote 81
Raven v. Oakland Unified Sch. Dist. (1989) 213 Cal.App.3d 1347, 1364.Footnote 82
Judson Steel Corp. v. Workers’ Comp. Appeals Bd. (1978) 22 Cal.3d 658, 666–667.Footnote 83
Gov. Code, § 12945.2.Footnote 84
Gov. Code, § 12945.2, subd. (l).Footnote 85
Gov. Code, § 12945.2, subd. (c)(2); Cal. Code Regs., tit. 2, § 11087, subd. (d) [“‘Covered employer’ means any person or individual, including successors in interest of a covered employer, engaged in any business or enterprise in California who directly employs 50 or more persons . . . .”].Footnote 86
Gov. Code, § 12945.2, subd. (a).Footnote 87
Gov. Code, § 12945.2, subd. (a).Footnote 88
Gov. Code, § 12945.2, subd. (c)(3).Footnote 89
Gov. Code, § 12945.2, subd. (c).Footnote 90
Gov. Code, § 12945.2, subd. (c)(8).Footnote 91
Gov. Code, § 12945.2, subd. (l).Footnote 92
Gov. Code, § 12945.Footnote 93
Gov. Code, § 12945, subd. (a).Footnote 94
Gov. Code, § 12945.2, subd. (c)(3); Cal. Code Regs., tit. 2, § 11046, subd. (a) [“The right to take a pregnancy disability leave under Government Code section 12945 and these regulations is separate and distinct from the right to take leave under the California Family Rights Act (CFRA), Government Code sections 12945.1 and 12945.2.”].Footnote 95
Gov. Code, § 12945, subd. (a).Footnote 96
Gov. Code, § 12926, subd. (d).Footnote 97
Cal. Code of Regs., tit. 2, § 11035, subd. (f) [“A woman is ‘disabled by pregnancy’ if, in the opinion of her health care provider, she is unable because of pregnancy to perform any one or more of the essential functions of her job or to perform any of these functions without undue risk to herself, to her pregnancy’s successful completion, or to other persons.”].Footnote 98
Cal. Code of Regs., tit. 2, § 11035, subd. (f).Footnote 99
Gov. Code, § 12926, subd. (m)(1).Footnote 100
Gov. Code, § 12945, subd. (a).Footnote 101
Labor Code, § 233; see also Labor Code, § 1512 [relating to bone marrow donations].Footnote 102
Labor Code, §§ 233, subd. (a), 246.5, subd. (a)(1).Footnote 103
Labor Code, § 233, subd.Footnote 104
Labor Code, §§ 1030–1033; 29 U.S.C. § 207(r) [applying only to employers with 50 or more employees if such requirements would impose an undue hardship].Footnote 105
Labor Code, § 1032 [“An employer is not required to provide break time under this chapter if to do so would seriously disrupt the operations of the employer.”]; see also 29 U.S.C. 207(r)(3) [“An employer that employs less than 50 employees shall not be subject to the requirements of this subsection, if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.”].Footnote 106
Elec. Code, §§ 14000–14002.Footnote 107
Elec. Code, § 14000, subd. (a).Footnote 108
Elec. Code, § 14000, subd. (b).Footnote 109
Elec. Code, § 14000, subd. (c).Footnote 110
38 U.S.C. § 4312.Footnote 111
38 U.S.C. § 4313.Footnote 112
38 U.S.C. §§ 4311–4313.Footnote 113
38 U.S.C. § 4316(c).Footnote 114
Labor Code, § 230, subd. (a) [“An employer shall not discharge or in any manner discriminate against an employee for taking time off to serve as required by law on an inquest jury or trial jury, if the employee, prior to taking the time off, gives reasonable notice to the employer that the employee is required to serve.”].Footnote 115
Labor Code, § 230, subd. (a).Footnote 116
Labor Code, § 230.8.Footnote 117
Labor Code, § 230.8, subd. (a).Footnote 118
Labor Code, § 230.8, subd. (a).Footnote 119
Labor Code, § 230.7; Ed. Code, § 48900.1.Footnote 120
Labor Code, § 230.7, subd. (a).Footnote 121
Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 170 [“[W]hen an employer’s discharge of an employee violates fundamental principles of public policy, the discharged employee may maintain a tort action and recover damages traditionally available in such actions.”]; Stevenson v. Superior Court (1997) 16 Cal.4th 880, 887 [“An employer may not discharge an at will employee for a reason that violates fundamental public policy.”].Footnote 122
Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1095 [“The employer is bound, at a minimum, to know the fundamental public policies of the state and nation as expressed in their constitutions and statutes; so limited, the public policy exception presents no impediment to employers that operate within the bounds of law. Employees are protected against employer actions that contravene fundamental state policy. And society’s interests are served through a more stable job market, in which its most important policies are safeguarded.”].Footnote 123
Stevenson v. Superior Court (1997) 16 Cal.4th 880, 889-890 [“[T]his court established a set of requirements that a policy must satisfy to support a tortious discharge claim. First, the policy must be supported by either constitutional or statutory provisions. Second, the policy must be ‘public’ in the sense that it ‘inures to the benefit of the public’ rather than serving merely the interests of the individual. Third, the policy must have been articulated at the time of the discharge. Fourth, the policy must be ‘fundamental’ and ‘substantial.'”].Footnote 124
Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 665 [“But the employer’s right to discharge an ‘at will’ employee is still subject to limits imposed by public policy, since otherwise the threat of discharge could be used to coerce employees into committing crimes, concealing wrongdoing, or taking other action harmful to the public weal.”].Footnote 125
Labor Code, § 432.5; D’Sa v. Playhut, Inc. (2000) 85 Cal.App.4th 927.Footnote 126
Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 195 [“In order to prevail under the disparate treatment theory, an employee must show that the employer harbored a discriminatory intent.”].Footnote 127
Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 215.Footnote 128
Davis v. Farmers Ins. Exchange (2016) 245 Cal.App.4th 1302, 1320; Cal. Code Regs., tit. 2, § 11009, subd. (c).Footnote 129
Mixon v. Fair Employment & Housing Comm. (1987) 192 Cal.App.3d 1306, 1319.Footnote 130
Davis v. Farmers Ins. Exchange (2016) 245 Cal.App.4th 1302, 1320.Footnote 131
Alamo v. Practice Management Information Corp. (2013) 219 Cal.App.4th 466, 476; Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 241.Footnote 132
Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1244 [“In an attempt to avoid liability, an employer may refrain from actually firing an employee, preferring instead to engage in conduct causing him or her to quit.”].Footnote 133
Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1244 [“Constructive discharge occurs when the employer’s conduct effectively forces an employee to resign.”].Footnote 134
Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1244 [“Although the employee may say ‘I quit,’ the employment relationship is actually severed involuntarily by the employer’s acts, against the employee’s will. As a result, a constructive discharge is legally regarded as a firing rather than a resignation.”].Footnote 135
Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1305.Footnote 136
Mullins v. Rockwell Internat. Corp. (1997) 15 Cal.4th 731, 738.Footnote 137
Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1246.Footnote 138
Civ. Code, §§ 3300 [contract damages], 3333 [tort compensatory damages]; Martinez v. Robledo (2012) 210 Cal.App.4th 384, 390 [“the basic purpose of tort law . . . is to make plaintiffs whole . . . or to approximate wholeness to the greatest extent judicially possible”].Footnote 139
42 U.S.C. § 1981a(b)(3).Footnote 140
Labor Code, § 2699, subds. (g); Gov. Code, § 12965, subd. (b) [“In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney’s fees and costs, including expert witness fees.”].Footnote 141
Civ. Code, § 3294.Footnote 142
Ukiah v. Fones (1966) 64 Cal.2d 104, 107 [“It is a well settled rule that a civil service employee who has been unlawfully deprived of his position is entitled to recover the full amount of the salary which accrued to him from the date of his unlawful discharge to the date of his reinstatement, less any amounts he earned or might reasonably have earned from other employment during that period.”]; Gov. Code, § 12653, subd. (b).Footnote 143
Pollard v. E. I. du Pont de Nemours & Co. (2001) 532 U.S. 843, 846 [121 S.Ct. 1946, 1948, 150 L.Ed.2d 62, 67] [“In cases in which reinstatement is not viable because of continuing hostility between the plaintiff and the employer or its workers, or because of psychological injuries suffered by the plaintiff as a result of the discrimination, courts have ordered front pay as a substitute for reinstatement.”].Footnote 144