It really depends on the basis or motivation for the retaliation. Not all terminations that are retaliatory are actionable. Only those where the retaliation is based on engaging in legally protected conduct will qualify, and then only those where the legal protection is considered a fundamental public policy of the state will survive to be a meritorious cause of action.
For instance, an employee terminated for reporting a supervisor for sexual harassment in the workplace would be actionable because the reporting was legally protected (under FEHA) and the protections of employees from workplace sexual harassment has been determined to be a fundamental public policy of the state.
If that same employee, instead is fired for reporting to management that the supervisor was overstating his expenses and thereby cheating the company, although the motivation was retaliation, such reporting is not legally protected and it is not a fundamental public policy of the state to protect employees who report non-protected internal wrongdoing to the employer.
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.
When people talk about “wrongful termination,” they are really talking about wrongful termination in violation of public policy. For a termination to be “wrongful,” it must violate a public policy.
Public policy refers only to things that are specifically prohibited by a statute (law) enacted by the legislature, or prohibited by a regulation promulgated (established) by a government agency. An employer cannot change terms of employment or fire you if the reason for the change is against the law. For example, an employer cannot increase your workload because of your race, sex, national origin, religion, etc., because you blew the whistle on safety violations, because sat for jury duty, or for any other reason that the law protects.
One of the most widely-known areas of public policy includes statutes prohibiting discrimination against people in specific protected groups, which include sex, race, national origin, disability, sexual orientation, age (40 years and older), religion, marital status and pregnancy.
In this context, “discrimination” means to treat differently from others who are not in the same protected group, but are similarly situated. “Discrimination” does not mean an employer has to be fair, or has to make good decisions.
In California, a person complaining of discrimination must file a claim with an administrative agency before he or she can file a lawsuit. The person can file a claim with either the California Department of Fair Employment and Housing within on year of the discriminatory act, or with the federal Equal Employment Opportunity Commission (EEOC) within 300 days of the discriminatory act.
As mentioned above, public policy also protects people who blow the whistle on a matter of public concern, complain about improper wage and hour practices, or who exercise voting rights, family leave rights, jury duty rights, domestic violence rights, and a few more statutes. There are various ways to enforce these rights.
If you believe you have been fired or retaliated against in violation of public policy, I urge you to consult with one or more experienced employment law attorneys. To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org, and you can search for attorneys by location and practice area.
I hope you can resolve your situation and wish you the best.
*** 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. ***
Both Ms. Spencer and Mr. Pederson have given you excellent answers. If, for example, you complained that your supervisor was doing a poor job, the employer could fire you without violating any law. If, however, you complained that your supervisor paid you less because of your sex, you could not be fired for that.
Of course, any complaint would have to be reasonably based for the law to protect it.
Good luck with your legal matter.
Craig T. Byrnes
Disclaimer: Please be aware that I am not offering legal advice, nor forming an attorney-client relationship with you. I am not representing you, nor doing anything to protect your legal rights. If you believe that you have suffered a legal wrong, take action before any statute or limitations expires, or your right to do so may be lost forever. Good luck in your legal matter.