Unlawful Termination In California — What It Is And What To Do About It

man fired

Most employees in California are classified as “employees at will.” An employer can fire an employee at will at any time and for any reason (or for no reason), unless the reason is unlawful.

A few categories of employees are not “employees at will,” including:

  • Union members
  • Civil service employees
  • Other government employees who are protected by statutes, regulations, or ordinances
  • Employees who have an employment contract that requires terminations to be “for cause”

Those employees, unlike “at will” employees, have protections against unjust terminations. 

While “at will” employees can be fired for reasons that seem unfair or arbitrary, they are not entirely without protection. Employees can pursue a legal remedy when they have evidence that they were fired in violation of federal or California law.

Terminations that Violate Civil Rights Laws

No California employee can be fired because of their:

  • Race or color
  • National origin or ethnicity
  • Sex
  • Pregnancy (including childbirth, breastfeeding, and related medical conditions)
  • Sexual orientation
  • Gender identity or gender expression
  • Disability
  • Age (40 or older)
  • Religion (including religious dress and grooming practices)
  • Citizenship status (if legally eligible to work)
  • Marital status
  • Genetic characteristics
  • Medical condition
  • Military or veteran’s status

An employee is fired “because of” membership in a protected class when that class membership motivated the termination. A termination is usually unlawful if the employee would not have been fired if he or she did not belong to the protected class.

Employers rarely admit that they were motivated to fire an employee for an unlawful reason. Instead, they invent an untrue reason for the termination. If an employee can prove that the asserted reason for the termination was untrue, a jury can view the employer’s reliance on a pretext to justify termination as evidence that the employer is concealing an unlawful motivation.

Retaliatory Terminations

A number of federal and California labor laws protect the right of employees to be free from retaliation for exercising lawful rights. Those laws include:

  • Civil Rights Laws. No employee can be fired for opposing unlawful discrimination or harassment or for participating in legal proceedings (as a party or witness) concerning discrimination or harassment claims, even if the employee is not in a protected class. In addition, employees cannot be fired for refusing to obey an unlawful order to discriminate against another employee.
  • Lactating Mothers. Employers must give lactating employees a reasonable opportunity to express their breast milk in a private place, and may not terminate an employee for exercising that right.
  • Laws Requiring Accommodation. Employees are entitled to ask for an accommodation for a disability or for a religious practice. It is unlawful to terminate employment simply because the employee requests an accommodation, even if the employer is entitled to refuse the request.
  • Family and Medical Leave Laws. The federal Family and Medical Leave Act and the California Family Rights Act both prohibit retaliation against employees because they take or request a leave for medical reasons or for childbirth, adoption, or child bonding.
  • Wage Complaints. The federal Fair Labor Standards Act and California law prohibit firing an employee because the employee made a claim against the employer for nonpayment of minimum wage or overtime, or for a violation of other state or federal wage laws.
  • Military Service. Employers may not terminate (or refuse to reemploy) members of the National Guard or Reserves who take time off from work to fulfill a service obligation.
  • Workers’ Compensation. California law prohibits the termination of employees because they were injured on the job or made a workers’ compensation claim.

A number of other laws prohibit terminations because employees complied with legal obligations, including the obligation to report for jury duty and to obey a subpoena. Employers have an obligation to comply with wage garnishment orders and cannot fire an employee because the employee’s wages are garnished.

Other laws protect an employee’s right to talk with other employees about work conditions, to vote, and to attend parent-teacher meetings. An employment lawyer can explain how those laws might be used to challenge an employee’s termination.

Whistleblower Terminations

Employees enjoy federal and state protections from termination for reporting an employer’s violation of certain laws. Examples include reports of:

  • Unsafe working conditions
  • Fraudulent billing to government agencies
  • Violations of environmental laws
  • Violations of securities regulations
  • False business tax returns

Reports of most false statements to federal inspectors or agencies are protected “whistleblower” activities. In addition, a California law protects employees who report an employer’s violation of state law, including the failure to comply with government regulations, if the report is made to:

  • a government or law enforcement agency,

  • the employee’s supervisor, or

  • any person employed by the employer to investigate the employer’s compliance with the law (usually known as a “compliance officer”).

It often pays to get legal advice before reporting an employer’s unlawful activity so that the report is made to the proper person and is worded in a way that will maximize the law’s protection.

Terminations That Violate Public Policy

On occasion, an employee at will is protected from termination if the termination would violate a public policy that is embodied in a California statute or regulation. For example, if an employer directs an employee to lie to the police and the employee refuses to commit that crime, firing the employee to punish the employee’s disobedience would be a wrongful termination.

Firing an employee for taking an action that the law requires might also violate a public policy. For example, a court would probably find that a daycare employee was wrongfully terminated if the employee was fired for obeying a law that requires daycare employees to report child abuse.

Finally, firing an employee for exercising a right protected by law can give rise to a wrongful termination claim. For example, firing an employee for refusing a polygraph examination might be a wrongful termination in light of a California law that prohibits most employers from requiring employees to submit to polygraphs.

Whether a wrongful termination occurred depends on the facts. Employees who think they might have been wrongfully terminated should ask an employment lawyer to review the facts in light of federal and California law to determine whether the employee might have a legal remedy.