Is it considered wrongful termination if i my employer terminate before addressing my harassing environment complaint ?

Asked 7 months ago - Los Angeles, CA

I work for a small software company . I am the first employee since 2011 . I coded and built all the products we have. I complained to my founder/ceo three weeks back about the harassing environment and against my supervisor /co-founder. he spoke with me and said he will take next step to ensure peaceful environment. week back i got a new mail asking me to sign a bunch of documents saying nda and contract for hire for the 2012 period. the nda included many clauses including termination certificate . i said i wont sign as it is against law to call me as an independent contractor when i am an employee. today they called me and offered me two option. option 1: 2 months severance option 2: termination . if they terminate is it not a wrongful termination ? i got all emails on record.

Additional information

I have signed two employment offers so far one in 2011 oct and the other one in aug 2012. They gave me 1099 for the period of dec 2011 to aug 2012. They were trying to get me signed for this period i think after when i filed harrassing environment(I didnt sign this) . I am the first employee as programmer . for nearly two years we dont have any clocking or time sheets to record our time efforts at work. First one and half year i worked like crazy even on vacation. i took vacation after 1.5 years. All I have is emails since day one to support some of my claimes . How do I apply for over time when there is no time sheet record ?

Attorney answers (5)

  1. Daniel Michael Holzman

    Pro

    Contributor Level 15

    2

    Lawyers agree

    1

    Answered . There are many issues you brought up in your question. 1). Retaliation for complaining about harassing conduct. 2). The fact your employer is saying you are an independent contractor when you sound like you're an employee. You may have a wrongful termination case as well as labor code violations for being misclassified as an independent contractor. You need to talk to an employment attorney to get a full and proper case analysis. Most lawyers will provide you with a free consultation. Best of luck.

  2. A Melissa Johnson

    Contributor Level 15

    1

    Lawyer agrees

    Answered . At-will employment is a doctrine in which an employee can be dismissed by an employer for any reason without having to establish "just cause" for termination, and without warning. The basis for this rule is that an employee may be similarly entitled to leave his or her job without reason or warning.

    In workplaces with a trade union and a collective bargaining agreement, and in many public sector jobs, the normal standard for dismissal is that the employer must have a "just cause". Otherwise, subject to statutory rights, such as protections against discrimination and/retaliation, the general principle is that an employee may be discharged without cause and without notice.

    If you believe that you are in a protected category and you are being harassed at work and terminated because of the protected category, you might benefit from consulting with an experienced employment law attorney and having them evaluate your case. The California Employment Lawyers Association maintains a list of employment law attorneys who represent employees against employers. Follow the link to: www.cela.org.

    Your post s not clear about the agreement your employer wants you to sign. As such, I cannot address that portion of your post.

  3. Kristine S Karila

    Contributor Level 16

    1

    Lawyer agrees

    Answered . Call an employment law attorney to discuss. Many of us offer a free initial phone consultation. Harassment in the workplace is only unlawful if it is based on a protected class (age, race, gender, religion disability, pregnancy, etc.). If you complained about unlawful harassment and were fired because if your complaint, you may have a case for wrongful termination. If you were misclassified as an indep. contractor and are owed overtime or were not given the opportunity to take breaks or meal periods, you may have a claim for those violations. CA law does not require that severance pay be provided unless the employer has a pattern/history of paying it. Most severance agreements contain releases of all claims. As such, before signing any agreement, call an employment law attorney to discuss whether you have valid legal claims and if so, how to negotiate for more severance pay.

  4. Michael David Early

    Pro

    Contributor Level 9

    Answered . I agree with my colleagues that you may have claims: 1) for unlawful termination, if you were terminated in retaliation for complaining about unlawful harassment; 2) misclassification as an independent contractor; and 3) claims for overtime and meal and rest break premiums.

    However, I want to point out that there is a special overtime statute that applies to people such as yourself who are employed in the computer software industry. Labor Code Section 515.5 provides that employees in the computer software field are not entitled to overtime if they: 1) are primarily engaged in work that requires discretion and independent judgment; 2) are primarily engaged in a) the application of systems analysis to determine software or hardware functional specifications or b) the design, modification or testing of computer systems or programs; 3) are highly skilled in computer systems analysis, programming or software engineering; and 4) make at least $36 per hour or (if salaried) $75,000 per year. If you meet all four of these criteria, then you are unfortunately not entitled to overtime.

    In any event, you should definitely contact an employment lawyer knowledgeable in this area who can determine what your rights are and what claims you may have.

  5. Joshua Y. Lee

    Contributor Level 11

    Answered . Your case is a little convoluted and complex. You have the employee vs IC issue and then you have this harassment retaliation whistle blower thing going on and wrongful termination as a result.

    I think there is no way around this one. Call an attorney. You need at least a consultation so the attorney can explain your situation and what can be done.

    Any advice, suggestions, answers to questions, directions, either implied or express, are not binding, do not... more

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