Wrongful Termination, at will employment, Constructive Discharge, Voluntary Quit> FAQ - Wrongful Termination & Discharge

Wrongful Termination & Constructive Discharge

Frequently Asked Questions:  What is a Wrongful Termination? 
a California 
Plaintiff's Side
Employment Law Practice
Employee- side only...
What is Wrongful Termination?

Simply stated, an involuntarily termination from employment for reasons that violate federal or state statutes or important public policy considerations or a contract. Additionally, if you have been forced to quit due to a legally intolerable working environment it is possible you have suffered a constructive discharge which is legally similar to a wrongful termination. 

Examples of Wrongful Termination would include terminations for motives relating to certain types of discrimination, whistleblower retaliation, protesting unlawful harassment, protesting wage violations, and other motives & conduct by the employer that violates or interferes with protective statutes. 

What is "At Will" Employment

California Labor Code Section 2922 all employment is presumed to be at the will of either party, terminable with or without cause or notice.  In other words, you can walk off a job without notice, the employer can fire you without warning, neither party is liable for Wrongful Termination. Contracts, implied agreements, special circumstances can overcome this presumption or create liabilities for either party because of other civil or contract rights.  Union jobs are not normally subject to the presumption of "at will" rules because of the union contract.

Does a Performance Improvement Plan alter "At Will" Employment?

You might argue that receiving a PIP implies your continued employment through the PIP period, (e.g. 30, 60, 90 days). That argument is unlikely to be workable as most PIPs are not likely to explicitly nor implicitly promise continued employment during the performance period and the damages for an "early termination" would be limited to weeks of pay.  However, if you were terminated "early" to prevent you from vesting in options, receiving a commission at the pay date, or other scheme to cheat you out of what you would otherwise be entitled to at the end of the PIP period - you should talk to an attorney promptly.

Can you consider an abusive boss a form of Wrongful Termination/Constructive Discharge?

Not likely.  A Constructive Discharge occurs when you've resigned because the work environment was so offensive, hostile, or intolerable any reasonable person would have felt compelled to resign. This is not a easy standard, courts have held that an employee may need to inform a superior about the situation. "his plight", and the hostile conditions may need to be truly "intolerable" and "severe".  Merely having a bad boss with a bad attitude isn't sufficient.  

However, sexual harassment is often sufficient to maintain a Constructive Discharge complaint under the Fair Employment and Housing Act in California, FEHA. This is something to discuss with an attorney before you act.

Moreover, the standard for what is an intolerable working environment may be more straight-forward in the eyes of the California Employment Development Department (EDD) when applying for unemployment insurance benefits.  Although you may not have a Constructive Discharge / Wrongful Termination claim, you may have a fair argument to claim UI Benefits on the basis of an "intolerable" boss, (see Voluntary Quit).

I think I've been a victim of a Wrongful Termination, what can I do about it?

You can acquaint yourself with websites like the one maintained by the U.S. Equal Opportunity Commission EEOC or the California Department of Fair Employment and Housing DFEH if your feel your termination was due to unlawful discrimination, harassment or retaliation.  Keep in mind you have to act promptly; the EEOC. generally requires filing within 180 days of the alleged violation (normally 300 days in California cases), and the DFEH normally requires the claim be filed within the first year after the discriminatory event. You may self-submit an agency complaint yourself, but there are several benefits of having an attorney submit on your behalf. Talk to an attorney, get an overview of this process first. 

What about a lack of fairness, general business ethics, good faith, honesty and other considerations that might support a claim for Wrongful Termination?

The law in California changed significantly in the 1990s.  "Fairness" was often cited as a public policy interest, of meaning to all California citizens, and a breach of good faith could be the basis of a private civil injury lawsuit.  This changed, and our California Courts began to narrowly construe what protection of public policy interests could allow employees to bring civil claim for a wrongful termination claim against their former employers.  To quote a California Court:

"In recent years, the California Supreme Court has simultaneously reaffirmed and imposed limitations on this "public policy" exception to the usual rule denying compensation for discharged "at will" employees. Prior to 1992, the courts were free to determine whether the cause of an employee's dismissal implicated something truly in the public interest, and not merely someone's private interest. But in that year, our high court narrowed the exception to apply only when the public interest the fired employee sought to protect is "based in" or "tethered to" statutory or constitutional provisions. (Gantt v. Sentry Ins. (1992)."     

So it is all bad news for a former employee who seeks a remedy for a "Wrongful Termination"?

Not at all; the California Labor Code, the Fair Employment & Housing Act, and a variety of California statutes provide an abundance of public policy protections for workers in California, not to mention federal laws like the Fair Labors and Standard Act.  It may be more complicated and complex than accusing your former employer of treating you unfairly, but employer lawyers are skilled at stating claims within the proper context of genuine legal protections from unlawful employment practices. 

Notable Decisions:

JOHNSON v. UNITED CEREBRAL PALSY, 173 CA 4TH 740 (2009) - …here we can say as a matter of law that the “me too” evidence presented by the plaintiff in the instant case is per se admissible under both relevance and Evidence Code section 352 standards. The evidence sets out factual scenarios related by former employees of the defendant that are sufficiently similar to the one presented by the plaintiff concerning her own discharge by defendant, and the probative value of the evidence clearly outweighs any prejudice that would be suffered by defendant by its admission. 

NAZI v.UNITED AIRLINES, 178 CAL..APP.. 4th 243 (2009) - …but [we]  do observe that many employment cases present issues of intent, and motive, and hostile working environment, issues not determinable on paper. Such cases, we caution, are rarely appropriate for disposition on summary judgment, however liberalized it be.

GUZ v. BECHTEL, 24 CAL. 4TH 317 (2000) – {FN 18] We do not suggest the covenant of good faith and fair dealing has no function whatever in the interpretation and enforcement of employment contracts. As indicated above, the covenant prevents a party from acting in bad faith to frustrate the contract's actual benefits. Thus, for example, the covenant might be violated if termination of an at-will employee was a mere pretext to cheat the worker out of another contract benefit to which the employee was clearly entitled, such as compensation already earned.







For legal advice, consult your lawyer (or hire me) !    This is general information only; not guidance for your particular situation.
TCWalker@WLG-CA.com
(650) 889-4090

THOMAS C. WALKER, ESQ.
2880 Zanker Road, Suite 203
San Jose, CA 95134

THOMAS C. WALKER, ESQ.
4990 Hopyard Road, Suite 100
Pleasanton, CA 94588