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

Supervisor Not Liable for Retalition in California

The California Supreme Court recently filed the opinion of Jones v. The Lodge at Torrey Pines, which reversed a decision in which an individual was found liable for retaliation under the Fair Employment and Housing Act. Prior to Jones an employee could file a lawsuit naming his/her supervisor as a defendant and require the supervisor to pay money damages resulting from conduct that a jury or finder of fact found to be in retaliation for opposing discrimination in the workplace.

In Jones the California Supreme Court reasoned that individual supervisors should not have their personal assets at risk for decisions that they make at work. However, those opposing Jones would assert that such conduct is outside the scope of employment and otherwise a violation of the employees civil rights. Jones certainly may have a chilling affect on employees making complaints as the supervisor will be free to take whatever action in response and avoid personal liability (although the employer may still be responsible).

This also will have an affect on where a case may be heard as the Federal Court will otherwise not have jurisdiction as the individual defendant supervisor generally disrupts complete diversity required for removal actions. As such, more matters will be tried in Federal Court as individuals can no longer be named as defendants. It remains to be seen whether there will be more Intentional Infliction of Emotional Distress claims brought to allow plaintiff's to hold supervisors individually liable for their conduct.
Kevin C. Boyle
Law Offices of Kevin C. Boyle
www.kboylelaw.com

Total Temporary Disability Does not Discharge Obligations Under the FEHA

Many employers confuse their obligations in workers' compensation matters with their obligations under the ADA or California Fair Employment and Housing Act ("FEHA"). Just because a doctor has declared an employee to be Totally Temporarily Disabled (TTD) for the purposes of workers compensation, does not mean that the employer no longer has an duty to enter into an "interactive process" to find a "reasonable accommodation" to return the employee back to work as required by the ADA and the FEHA. Workers' compensation under the California Labor Code and discrimination under the FEHA (or ADA) protect different rights and operate independently. There is no law to suggest that an employer's obligations under the FEHA are excused because an employee is TTD.

Although TTD technically means that an employee is unable to perform some aspect of his job, workers' compensation doctors do not consider any accommodations that would allow the employee to return to work. In fact, the workers' compensation doctors generally have no idea what accommodations are available as they are not the employer. This is why the ADA and FEHA require an interactive process so that all such accommodation can be considered. Should that process identify alternative work or an accommodation and the workers' compensation doctor approves the employee will no longer be considered TTD.

Such a result is consistent with the legislative intent for the FEHA and the ADA, which are intended to allow disabled employees equal opportunity to work and to reduce the burden on welfare and benefits paid by the state. Unfortunately, most employers believe they owe no further obligation to the employees who are TTD. This is a periless position and can result in liability under certain circumstances.

Return to work from disability leave with doctors restrictions.

Often employers are confronted by employees who wish to return from a medical leave with doctor's restrictions, and employers are perplexed as to what action they must take. As workers' compensation benefits continue to be reduced, employees are looking to their employers to return back to work with more regularity. This is particularly true when there is no more, or very little vocational rehabilitation, such as in California.

Keep in mind that the California Fair Employment and Housing Act (FEHA) and the ADA pursuant to Title VII under federal law, require that employers engage in an "interactive process" to determine "reasonable accommodations" to return disabled employees back to work to the extent that does not create an undue hardship. It is the landscape of this requirement that causes problems for employers and is a hotbed of litigation and a minefield for employers who have little understanding of the law as it relates to their disabled employees.