Termination: The Difference Between Wrong and Wrongful
Example # 1: An employee misses three days of work with the flu and is terminated upon returning to work.In this example, it may be wrong for an employer to terminate the employee for missing three days of work with the flu. However, it would not constitute a wrongful termination. California's Fair Employment and Housing Act (FEHA) prohibits employers from discriminating against employees based on a physical or mental disability. However, having the flu does not count as a disability under the Americans with Disabilities Act (ADA).
Example # 2: A non-exempt employee complains about not being paid for one hour of overtime work and is terminated.Example # 2 would constitute wrongful termination. The California Labor Code requires employers to pay non-exempt employees for overtime hours worked. Employees are entitled to one and a half times their regular rate of pay for working more than eight hours per day and/or forty hours per week.
Even if the employee only works one hour of overtime, he or she is entitled to premium pay for that hour. If the employee complains for not being paid, the employer cannot retaliate against the employee by terminating them. California law prohibits such conduct. Termination on these grounds would be considered "wrongful". The same would apply if an employee was terminated for complaining about receiving less than minimum wage.
Example # 3: An employee is terminated based upon their physical appearance.The answer for this example is "it depends". The FEHA, defined above, prohibits employers from discriminating against employees for a number of reasons such as race, religion, national origin, ethnicity, etc. These are called protected categories. An employer is not allowed to discriminate against someone or terminate them simply because the person is in a protected category.
If an employee is discriminated against or terminated because of skin color, then that would amount to wrongful termination. The same is true if the employee was terminated for being in a wheelchair.
The FEHA was also recently expanded to include protection for religious dress. Accordingly, an employee cannot be terminated for religious dress or grooming practices.
On the other hand, an employer can generally terminate an employee based on non-protected physical appearance, such as tattoos, hair color, body piercing, etc.