Wrongful termination is when an employer illegally fires someone, often in a discriminatory manner, such as firing someone who becomes pregnant or disabled.
Document Each Stage of the Termination You can justify your termination by documenting. From the moment you notice you have an issue with your employee, you will want to start documenting all communications with that employee, their work issues, and keep performance reviews in a folder. If there are any coaching and extra training sessions issued to help and keep the employee on par, you will want to document those as well – because this will show that you did what you could to help the employee stay. Communicate Concerns Clearly Wrongful termination lawsuits typically happen because an employee did not realize there was anything wrong; therefore, they are terminated without reason. If an employee is in danger of losing his or her job, do not try to sugar coat it or avoid telling the employee. Instead, let them know what issues you have and possibly ways to correct it – giving the employee a chance to redeem themselves. Also, by discussing specific issues you have with them, you have more proof when it comes to justifying a termination if one occurs later on. No matter what, make sure you inform the employee immediately after an issue arises so that they have adequate time to correct it. Take Steps to Protect Your Business Once you have done everything you can to help that employee, and they have not improved within a fair timeframe, it may be time to terminate the employee. Before you actually start the termination process, make sure your reasons for the termination do not violate state or federal law. If you are unsure, consult an attorney. Some reasons that can violate the law include pregnancy, gender, age, or other types of discrimination. Make sure that you gather all documentation that supports or justifies your reasons for the termination. You will want to sit down with the employee with all of your documentation and discuss why you are letting them go. Show them performance reviews, the opportunities to improve that you have provided, and how they have not improved since then. You will want to give all of the details and not be ambiguous about the fine points. The broader you are, the more confusion that the employee may have – and the higher chance for a wrongful termination. Do Not Argue If the employee pleads or argues with you, do not engage. Simply state your facts and terminate the conversation. It is best that you have a witness there – but not a peer employee. You should have a member from your human resources department or another manager present for the termination. Having an employee’s peer present could be a violation of their rights. Cut all employment ties right away. That includes gathering any information, badges or parking passes the employee may have. If the employee has a login code, you will want to have your IT department change that or deactivate it immediately so that they no longer have access. Allow the employee to clear out their personal belongings, while supervised, and escort them to the doors. By preparing for the termination ahead of time, you can reduce the likelihood an employee will be able to sue. While no one can predict the behavior of a terminated employee, having a employment law attorney present can help your termination.
Start Documenting the Bully at Work Keep a log of every interaction with the bully at work. Write down an entry each time you experience bullying. Make sure each entry includes what happened, the time and date of the incident, all people involved, – including witnesses who might have seen or heard anything – and why the conduct constitutes abuse. The log will not only provide a timeline of the workplace bullying but also ensures that you will not forget critical details later on. Make sure to emphasize any interaction that includes bullying based on a legally protected characteristic, such as race, ethnicity, gender, sexual harassment, sexual orientation, disability, religion, age, national origin, marital status, or pregnancy. This type of conduct is not merely workplace bullying but also constitutes workplace harassment. Report Workplace Bully to Your Supervisor or HR Often, individuals are not comfortable speaking directly to the workplace bully. Do not remain silent! The bullying will continue if you do. Instead of directly communicating with the workplace bully, consider reporting the bullying to your supervisor or human resources department. Make sure to report the complaint in writing, and indicate that the workplace bully is impacting your productivity, health, and morale. Remember to keep a copy of your complaint for your records. Employers are required to address complaints of bullies at work, or they will face exposure to legal claims. You may even consider providing practical suggestions as to how the employer can address workplace bullying. Form a Workplace Bully Victim Group If the bully at work targets other coworkers, get in contact with them and group together to address the problem. Ask your coworkers also to document the bully’s behavior. After building a collective case, file a complaint to HR as a group. This unified action will give your employer solid ground to take action against the workplace bully, and make it very difficult for them to ignore the problem. Request a Transfer If the bullying at work persists despite reporting it to your employer, you may consider requesting a transfer either to a different department or branch. Your employer should work with you to mitigate the bully, and if honoring the transfer request is the only way to address the problem, then they should honor it. Consider Leaving Your Employment Your health and well-being are most important, and compromising it for your job is not worth it. If you have done everything possible to eliminate workplace bullying, and your employer has either ignored you or refused to help, then it may be time to explore other options. Be sure to speak with an attorney before leaving your current employment. Leaving employment is a severe and life-altering decision that befits a consultation with an attorney. Further, you may have legal rights entitling you to damages for having to deal with the bully at work. If you are considering departing from your current employment, Contact Astanehe Law for your free consultation. Generally, workplace bullying is not illegal in California. However, your employer must take action to address hostile acts, including workplace bullying by coworkers and supervisors. Specific forms of workplace bullying may be illegal. Your employer cannot allow harassment or retaliation to occur. Additionally, your employer may have an anti-bullying policy. If you are the victim of workplace bullying, contact Astanehe Law for your free consultation. Astanehe Law has experience in protecting California employees from workplace bullies and will help you obtain justice!
Pregnancy remains one of the most clearly protected classification for employees, safeguarded not only under general disability laws, but also under laws enacted specifically to protect expectant women. See, for example, Pregnancy Accommodation in California (Nov 2018); Employers with 20 or More on Payroll Must Provide Expanded Parental Leave (December 2017); Expanded Pregnancy Health Benefits for Most California Employees (October 2011). Refusing to hire someone or otherwise taking adverse action because of pregnancy is an excellent way to trigger repercussions from government agencies as well as the person targeted. The Equal Employment Opportunity Commission (EEOC) has just announced an $80,000 consent decree entered into with Scribe-X Northwest (Scribe-X) of Portland, Oregon over its refusal to hire a pregnant woman, Brittany Frisby. After the company hired Ms. Frisby to start work as a medical transcriber in January 2016, she mentioned that she was pregnant. The CEO then called her personally to tell her the job offer was rescinded and the company would not have hired her if it had known. Not only does Scribe-X have to pay Ms. Frisby $80,000 for lost wages and emotional distress because of its Dark Ages mentality, it also must implement policies that will protect such employee rights, train its executives and staff, and report to EEOC on compliance. John Stanley, EEOC Supervisory Trial Attorney, stated: "Ms. Frisby sought to earn a steady paycheck at a stable job to support a new child. By bringing her story to the EEOC, she tried to right a wrong, and this positive outcome allows her move on and ensures positive changes for current and future employees at Scribe-X." Company executives must have at least enough understanding of a decision’s potentials to know when it’s time to consult an experienced employment attorney beforehand. In this case, it likely would have taken only a vague notion of discrimination laws to sense that refusing to employ a woman because of pregnancy was a recipe for disaster. For further assistance, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin. Helena Kobrin June 21, 2019
Don’t disparage your company online. For many of us, social media is one of the first things we turn to after a hard day, and it might even be a place you’re used to complaining about your job regularly. If you think you’re getting fired, it is essential to resist the temptation to bash the company online. Don’t just stay away from Facebook, Twitter, and Instagram; steer clear of venting your frustration on Yelp, LinkedIn, and job review sites, too. While it may feel good to bash your boss on the Internet, your short-term frustration may turn around to bite you and make it harder to get a severance agreement. You’re not going to solve any problems or prevent your imminent firing, and on the off-chance that you’re not actually being let go, you’re giving the company a great reason to reconsider. Find a family member or trusted friend and vent to them instead. Don’t email yourself sensitive information. It can be tempting to email yourself proof that you’ve been doing your job well, or proof that you’ve been discriminated against, but be careful to stay within the guidelines of your company’s policy about confidential and sensitive information. Printing out information and saving it, uploading files to a flash drive or forwarding emails to an account outside of your company’s system could be grounds for dismissal by itself. If you feel you have been discriminated against, your company may be required to provide information such as email correspondence and job reviews anyway (California law requires that employers provide their employees’ personnel files upon termination. Texas law does not but in a lawsuit, you will ultimately get your personnel file). Forwarding emails to yourself may seem like a good idea, but it’s important to not give the company any more reasons to let you go. Do continue to do your job to the best of your ability. It can be hard to soldier on when you feel you’re facing termination, but if you suddenly stop doing your job, or you encourage others to stop doing their jobs, you are giving your employer more reasons to let you go. Don’t get into an argument with your boss. It is very important to not vent your frustration or anger to anyone senior to you, including most importantly your boss. Good claims for wrongful termination can go sideways in a minute if you boil over and say anything inappropriate to your boss or another member of management, including the HR employees. If you are fired, resist the temptation to tell the people who terminated you what you think of them or to be insubordinate in any way. If you do have a good claim for wrongful termination, don’t waste it by giving the company a valid reason to have fired you. Do make a list of relevant incidents in your job history -- and keep it at home. If you suspect that discrimination or retaliation may be to blame for your termination, make a list of relevant incidents. Was there a change in your manager’s behavior after you reported sexual harassment? Did your employer withhold your yearly bonus after you reported the company’s illegal conduct? Did your hours change after you took medical leave or requested disability accommodations? Does your supervisor have a habit of telling inappropriate jokes? Have you been passed over for promotions that have been given to younger employees with less experience or only to men or only to employees of a different race? There are lots of different ways discrimination and retaliation can happen, and it’s important to sit down and write out any incidents you feel may be relevant to your claim. Also include times you were praised for your work, or got an award, promotion, raise, or performance bonus. If you get fired for alleged performance issues, this will help to refute that. Try to remember specific names, dates, and times if possible, including the names of any witnesses to the incidents. Putting the list in chronological order is usually the best way to keep it organized. Finally, remember to keep the list at home; don’t share it with any coworkers or put it online. These incidents may point to discrimination or retaliation, and they may not. Read more here about discrimination and protected classes, retaliation, and whistleblowing. Do make a claim for discrimination or other wrongful treatment with HR If you have not already done so, inform your HR department or other appropriate person of your claims that you have been treated wrongfully. It may be best to consult with an attorney regarding what to say and how to say it, but it is important that you have made a record of your allegations. Do so professionally and appropriately. Put your claims and their factual background in writing if possible.
As first-line defense against workplace disruption and legal claims, there is no substitute for well-written, up-to-date policies and procedures. A current, thorough employee policy manual (handbook) and complementary written internal guidelines covering all major aspects of personnel relations permit managers and rank-and-file workers alike to know where they stand. The courts are full of many employment-related lawsuits that likely could have been prevented with clearly written and uniformly applied policy in compliance with current law. An outdated handbook can cause its own set of problems. Over the past two decades, we have developed and refined a “soup-to-nuts” employee handbook and package of basic hire-to-fire forms and policies. Implementation of these forms and policies will greatly improve a company’s legal protection in employment screening, hiring, training, terminations, and other related issues. Our 2019 model employment handbook and forms contain significant revisions to keep pace with new laws and recent case decisions, not the least of which is the #metoo movement. Our model forms and policies include: a) Employment applications (including releases that acknowledge an employer’s use of pre-employment tests, notwithstanding the Americans with Disabilities Act and California’s constitutional privacy protection); b) Form job description (again, setting the foundation for use of tests at the pre-employment stage); c) Pre-employment procedures policy (properly positioning the above tests as aimed at job-related qualities rather than physical or mental disabilities); d) Employment agreement (including confidentiality/non-disclosure of company trade secrets and mandatory mediation and/or arbitration in the event of a dispute); and e) Termination policy, checklist and standard release (to be applied with troublesome employees for greater protection against later, frivolous suites). Our comprehensive model employee handbook includes: a) Conditions of company employment b) Discrimination and harassment, prevention and handling c) Employee compensation d) Employee benefits e) Employee job performance; mutual termination rights f) Employee privacy expectations, employer access to employee-maintained databases and social media guidelines g) Unpaid time off h) Job-related injury or illness i) Workplace health and safety j) Drug and alcohol policy; drug testing CONTACT US TO ORDER NOW “The employee manual creates very clear-cut policy and stable data for staff. They know the rules of the game because they are written. It makes it easier to correct staff. They have a policy that they can be referred back to and, if uniformly applied, they can’t hit you with ‘you’re picking on me, aka, you are discriminating against me’.” –JG To order or for more information, contact client services director Loretta Gardea at 626.583.6600 or email her at [email protected]
Federal, state and local laws have long banned workplace racial discrimination. A recent trend seeks to expand such protections to various race-based traits, particularly certain hairstyles. Under California’s now-pending Senate Bill (SB 188), workplace dress or grooming policies prohibiting natural hairstyles, including afros, braids and twists would be unlawful race-based discrimination: “In a society in which hair has historically been one of many determining factors of a person’s race, and whether they were a second class citizen, hair today remains a proxy for race.” The bill declares that “Eurocentric norms” have historically equated “blackness,” and the associated physical traits, for example, dark skin, kinky and curly hair to a badge of inferiority, sometimes subject to separate and unequal treatment. Thus, the bill reasons, “hair discrimination targeting hairstyles associated with race is racial discrimination.” New York City has already enacted the first-ever legal enforcement guidance against discrimination on the basis of natural hair and hairstyles that disproportionately impact Black people. Regardless of whether this initiative becomes actual law in California, employers should consider proactively modifying their dress code policy to eliminate any ban on natural hair or hair styles or requirements to straighten or relax naturally curly hair. See also: • How to Address the Employee Dress Code (September, 2018). • CA Labor Laws 2013: Religious Dress and Grooming and Employers’ Increased Duties To Accommodate (February, 2013). For additional assistance, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin. Cindy Bamforth March 29, 2019
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