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Do I have a valid wrongful termination claim?

San Diego, CA |

I had been at this company for 4 yrs 4 months and over a year and a half at my current position. I was terminated a little over a week ago for "having merchandise in my stockroom" this was Christmas merchandise I had planned to buy but forgot about. The items were found by my boss on Jan 30. Feb 2nd I was written up for "performance related issues". Not a word about The items. A week or so later I was requested to write a statement about The items. Then Feb. 22 I was terminated. First offense. Great work record. No verbal or written warning just straight to termination. Help please. Also 2other employees were caught for the same offense and were only written up.

Attorney Answers 3


  1. It sounds really harsh. But it is probably not a wrongful termination. Most employees are presumed to be "at-will" employees, as a matter of law. If you are an at-will employee the employer does not even need a good reason to fire you. It can fire you for any reason as long as the motivating reason is not an unlawful one. Which begs the question, why do you believe you were really fired?

    If it is because of the merchandise you planned to buy but forgot about, you have no case, even if the employer did not fire someone else for doing the same thing, unless unlawful factors were considered, such as race, national origin, gender, or some other protected characteristic. If you do believe there was some form of unlawful discrimination involved, you should review your belief with experienced employment law counsel in your area.

    They say you get what you pay for, and this response is free, so take it for what it is worth. This is my opinion based on very limited information. My opinion should not be taken as legal advice. For true advice, we would require a confidential consultation where I would ask you questions and get your complete story. This is a public forum, so remember, nothing here is confidential. Nor am I your attorney. I do not know who you are and you have not hired me to provide any legal service. To do so would require us to meet and sign written retainer agreement. My responses are intended for general information only.


  2. Mr. Kirschbaum is correct. You do not state a claim for wrongful termination. You can be terminated for any reason, or even no reason, as long as it is not an unlawful reason. An unlawful reason would be if you were terminated because you were a member of a protected class of people or because you had engaged in protected conduct. The facts you state do not fall into either of these categories.

    There is no duty for an employer to treat you exactly the same as other employees who engaged in the same conduct, unless the reason for that different treatment is unlawful (protected class/protected conduct). Furthermore, there is no duty for an employer to give notice, or any particular kind of notice before terminating.

    Good luck to you.

    This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.


  3. Unfortunately, employees and job applicants have very few employment rights, and employers have a lot of leeway in how they choose to run their businesses. In general, an employer can be unfair, obnoxious or bad at management. And an employer can make decisions based on faulty or inaccurate information. An employer has no obligation to warn an employee that he or she is not performing as the employer wants. It’s not a level playing field. An employer hires employees to provide work for its benefit, not for the benefit of the employees. Don't expect the employer to take care of its employees; it doesn’t have to and it rarely does.

    There are some limitations on what an employer can do, mostly in the areas of public policy (such as discrimination law or whistle blowing), contract law, union-employer labor relations, and constitutional due process for government employees. Please see my guide to at-will employment in California which should help you understand employment rights: http://www.avvo.com/legal-guides/ugc/an-overview-of-at-will-employment-all-states. After you take a look at the guide, you may be able to identify actions or behavior that fits one of the categories that allows for legal action. If so, an experienced plaintiffs employment attorney may be helpful.

    Employment rights come from the state and federal legislatures. One of the best things people can do to improve their employment rights is vote for candidates with a good record on pro-employee, anti-corporate legislation. Another way to protect employment rights is to form or affiliate with a union, or participate in a union already in place.

    I hope you can resolve your situation and wish you the best.

    twitter.com/MikaSpencer *** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***