Thursday, June 12, 2008

What is Wrongful Termination?

I get many phone calls from potential clients who describe all types of horrible, nasty, unfair, and unjust conduct that occurred as part of their termination. Because of that, they are convinced that they have a "Wrongful Termination" cause of action against their employer and want to file a lawsuit immediately. However, not all such conduct from an employer is actionable and may not give rise to a lawsuit.

Certainly every termination to a certain degree is "wrongful" as a termination involves some rift between the employee and employer that ends in the dissolution of that relationship, and except for the rift, both parties are otherwise economically dependent upon that relationship. Thus someone is going to be unhappy and believe the termination was "wrongful." I have never heard anyone tell me they had a "great" termination or it went "really well." Although a termination is generally an unpleasant event, that does not necessarily mean there is a basis for a lawsuit.

To be "actionable" there must be some legal authority that gives the employee the right to sue. That may come from our legislature in the form of a statute, such as the Fair Employment and Housing Act ("FEHA") or there may be some common law, or judge made authority, such as the tort of "Wrongful Termination in violation of Public Policy." The mere fact that the employee was treated poorly is itself not enough. There must be more.

Under the FEHA the unlawful conduct must have been motivated by some protected class to which the employee belongs. A protected class includes race, national origin, gender, disability, age, etc. . . all of which are enumerated in the FEHA. In Wrongful Termination in violation of Public Policy cases, the employee must be fired because of a protected right, or in a way that violates public policy that is set forth in a statue or our Constitution and that violation must affect the public at large. These are often whistle blower actions where the employee is fired because he or she complains about unlawful conduct of the employer.

When there is no basis for a lawsuit, the bad conduct will fall within the employers rights under the "at will" doctrine. In California and in almost every state, employees are presumed to be "at will," which means the employer may terminate them for any lawful reason without cause. The operable word, is "lawful reason," because unlawful conduct is actionable and has a legal basis for filing a lawsuit.

Thus the "at-will" doctrine does not give an employer unfettered discretion to act in any way they please. As discussed above, there are boundaries to the "at will" doctrine that are established by law. Moreover, businesses, governments, and organizations do not profit or grow if they treat their employees in a horrible fashion. Employees under such circumstances cannot operate effectively and neither can their organizations. Although they may not be sued, those employers that continue to treat their employees with disrespect will die by their own dysfunction.

Law office of Kevin C. Boyle
www.kboylelaw.com
employmentlaw@inbox.com

1 comment:

Jones Morris said...

I have bookmarked your blog, the articles are way better than other similar blogs.. thanks for a great blog! Unfair Dismissal