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Wrongful Termination from Community College Job

Artesia, CA |

I was wondering if I had a case against my Community College for wrongful termination. I was terminated on Monday May 6th, 2013. I believe I was wrongfully terminated since they did not follow the necessary procedures. I was working for the Disabled Students Programs & Services Department for about a year. They would be the ones to file all the proper paperwork in order for me to be terminated right? The ones who terminated me were the campus police and an employer cannot fire you for any reason until proven guilty by law right? I'm going through an issue aside from this which is being taken care of through the necessary procedures. Do I have a case against the college for wrongful termination? I have not received any charges for anything. Your input would be greatly appreciated. Thank you

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Attorney answers 5

Posted

You asked: an employer cannot fire you for any reason until proven guilty by law right?" " Wrong. 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.

Note that public employers cannot be sued for wrongful termination in violation of public policy, but there may be other legal claims you can pursue. I refer you again to my link above.

However, because you work for a public employer you have due process rights. You must be provided with notice of the proposed discipline or termination and must be given an opportunity to respond. If the decision is upheld, you will have the opportunity to request a hearing before a decision maker who is not employed by your employer. All that said, the process is extremely weighted on the side of the employer. You may be able to file suit in court if you lose the hearing. But by now, we are talking about a multi-year process from the day of the termination to the day the jury decides the case.

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. ***

Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

One more thing: Even if the employer did not follow proper procedures, nothing stops it from rescinding the discipline (or having the discipline thrown out) and then issuing the discipline again using proper procedures

Asker

Posted

Wow! Thank you for your helpful and thorough response! It sounds to me as if the employment system is all over the place and disorganized. If it helps my case I was not provided with a notice of the proposed discipline or termination and was not given an opportunity to respond. How would I go about requesting a hearing before a decision maker? Thank you. Daniel

Asker

Posted

Oh, gosh. From your last comment, does that mean my chances are very slim? or do I still have to take some sort of necessary action?

Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

I should have been more clear. The due process rights I mentioned apply to permanent employees only. If you were a permanent employee, the employer is obligated to provide you with the due process I mentioned above, which is called a Skelly process, named after the plaintiff in a case many years ago. There are strategic factors the weigh in on what the next move is and how to get the hearing. You really should consult with an attorney or two because there is far too much to go over here on Avvo. Plus, it's an open forum and anyone can read what is written here, including the employer. I have no idea if your chances are slim because I have no idea why you were fired. If the only thing in your favor is your belief the wrong department fired you, then your chances are slimmer than slim. The entity that fired you was the employer, not any particular document. It doesn't matter who or what department initiated the process.

Asker

Posted

How long does an employer have to present you with your last paycheck after termination? I haven't received mine yet.

Christine C McCall

Christine C McCall

Posted

In most jurisdictions, the full due process rights mentioned in this attorney response apply ONLY where the probationary term has been completed. In most jurisdictions, such rights are not applicable to employees who have not passed probation. Most public-sector probations are a year (and a day); in some jurisdictions or for some positions, the term is six months.

Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

Ms. McCall is absolutely correct that full due process rights apply only to permanent employees.

Posted

Short answer is that you have no right to your job. You have the right not to be terminated for certain "protected" reasons, but other than that, you can be fired for any reasons or for no reason. If you were discriminated against because of the race, religious creed, color,
national origin, ancestry, physical disability, mental disability,
medical condition, genetic information, marital status, sex, gender,
gender identity, gender expression, age, or sexual orientation, then you may have a claim.
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=gov&group=12001-13000&file=12940-12951

The other broad category for wrongful termination is retaliation. Retaliation occurs when you engage in a "protected activity" and you are subsequently retaliated against for doing so. You will need to speak to an attorney to find out if you engaged in protected activity.

Mr. Delshad is licensed to practice law only in California. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult with your own attorney. Jonathan J. Delshad

Asker

Posted

Thank you for your response. It was very brief but helpful. I was injured while I was working. I don't know if anything as minor as an ingrown toenail that was bleeding would help my cause? I was limping from one side of the campus to the other running errands for the office I worked at even though they were aware of it. Daniel

Posted

California, like most states, is an "at will" employment state. An employer can terminate an employee for any reason, for an unfair reason, or for no reason. However, there are exceptions. An employee may not be discharged for discriminatory reasons, such as race, gender, age, national origin, religion or sexual orientation. An employee also may not be discharged in retaliation for refusing to comply with an illegal directive of the employer, or for engaging in certain other protected activities, or if the employment contract or collective bargaining agreement provides that the employee can only be discharged for cause. The reason for your termination appears unrelated to any of these protected categories, and hence your employer likely was within his right to terminate you. You may want to speak to an employee rights lawyer to further discuss your situation.

This response is for information purpose only and does not constitute a legal advice. This response does not create an attorney-client relationship.

Posted

I generally agree with the prior answers to your question. I want to add that an important exception to at-will employment exists where the employee is a permanent civil servant, meaning the employee accepted a civil service appointment to a permanent position and successfully completed probation. Under California law, a permanent civil service employee enjoys a property interest in continued employment which a government employer may not deprive the employee of without due process of law. Due process generally requires notice of the charges and an opportunity to be heard before termination. You should immediately consult with a labor and employment attorney with experience handling public employment cases to discuss the particulars of your case and for specific legal advice.

Posted

The crux of your situation is here: "I was working for the Disabled Students Programs & Services Department for about a year." There is no "about" in these circumstances. If you worked a year and a day, you would ordinarily have become a permanent employee -- automatically upon the passage of that time limit in most but not all jurisdictions -- with civil service or civil service-type protections the day after your 1st anniversary.

If your "about a year" fell just days short of that anniversary, that was very likely be design. Public employers routinely terminate the employees that they may not wish to keep on as permanent just days before the one-year probation term would complete and civil service protection attaches.

If you were not a permanent employee with public-sector civil service (or similar contractual) protections, then you have no enforceable rights as to who fills out your termination paperwork, nor who makes the decision to terminate. You have the right to a very limited "hearing" (more like a meeting) if you are discharged for a reason that puts your character or integrity at issue, but public employers almost always dodge that requirement by making the probationary termination without specification of such grounds. If you were terminated before civil service protections applied, you have no right to any statement of "charges" from your employer.

Even after civil service protections kick in, you have no right to be found "guilty" before a termination. Employees can be lawfully fired for lots of reasons that do not cause criminal prosecution much less criminal conviction.

If you were a probationary employee, i.e., did not complete a full year of employment, you may have little to pin any hopes on. If you were a permanent employee with civil service protections, you may have a very sound case for challenging your termination. In that event, act quickly to talk with your union rep and file your appeal. Time limits are statutory (mandatory, self-effecting) and very short.

Good luck to you.

No legal advice here. READ THIS BEFORE you contact me! My responses to questions on Avvo are never intended as legal advice and must not be relied upon as if they were legal advice. I give legal advice ONLY in the course of a formal attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by joint execution of a written agreement for legal services. My law firm does not provide free consultations. Please do not call or write to me with a “few questions” that require me to analyze the specific facts of your history and your license application and prescribe for you how to get a State license. Send me an email to schedule a paid Consultation for that kind of information, direction, and assistance. My law firm presently accepts cases involving State and federal licenses and permits; discipline against State and federal licenses; and disciplinary and academic challenges to universities, colleges, boarding schools, and private schools. We take cases of wrongful termination or employment discrimination only if the claims involve peace officers, universities or colleges.

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