Wrongful Termination Law in California

Wrongful termination happens when an employment relationship is ended by an employer in violation of the employee's legal rights.⁠1 In California, wrongful termination claims can arise when an employer violates a state or federal statute,⁠2 general principles of public policy,⁠3 the worker's employment contract,⁠4 or some other aspect of the law.⁠5

California law provides comprehensive workplace protections for employees, some of which govern how, when, and under what circumstances an employee may legally be terminated. The most common wrongful termination claims involve discrimination, retaliation, and firings for taking legally protected time off. This article takes a closer look at these protections and explains when an employer commits wrongful termination under California state law.

Which Workers Are “Employees” under the Law?

In California, only an employee can file a claim or lawsuit against their employer for wrongful termination.⁠6 This is because a wrongful termination claim requires an employer to end the employment relationship.⁠7

The exact definition of the word “employee” will depend on the type of harm that the worker has alleged. But, in most cases, a worker will be considered an employee if they work under the supervision, direction, and control of an employer.⁠8

Employees differ from workers who are considered “independent contractors.” An independent contractor is someone who provides a business with a specific product or service, but the business generally has no right to control the means by which that result is accomplished.⁠9

The test for deciding whether a worker is an employee or an independent contractor now depends on the law the worker is suing under. For most claims arising under the Labor Code, a worker is presumed to be an employee unless the hiring business proves all three parts of the “ABC test.”⁠10 Claims under the Fair Employment and Housing Act, and claims for a termination that violates public policy, instead use the control-based definition described above.⁠11

In short, the more control an employer or supervisor exercises over the way a worker performs their tasks, the more likely the worker is to be considered an employee by the courts.⁠12

Workers who are not employees (like independent contractors or immediate family members⁠13) might have a claim against a business for breach of contract or a violation of some other law. But ending a business relationship in which neither party is an employee would not technically qualify as a “termination” for these purposes.

Employees in California Usually Work on an “At-Will” Basis

Most employees in California are considered to be “at-will” employees. At-will employment means that the employee is free to leave their job at any time, and employers are likewise free to fire the employee at any time for any lawful reason, or even no reason at all.⁠14

Employment in California is presumed to be at-will, unless there is a specific contractual relationship between the employer and employee that limits the employer's ability to fire the employee.⁠15 Under normal circumstances, both the employee and the employer have a right to end the employment relationship, unless doing so would be unlawful.⁠16

Employers Don't Need a Good Reason to Terminate At-Will Employees

At-will employees can leave employment at any time. Likewise, employers can fire at-will employees for seemingly arbitrary reasons, so long as those reasons are not unlawful.⁠17 This can lead to some confusing results.

Many employees believe that their job is protected unless they break the rules, do a bad job, or commit some other type of wrongdoing. But that usually isn't the case.

At-will employment means that an employer can simply decide to fire the employee on a whim, without any good reason, even when the employee is doing a good job.⁠18

For example, an employer might be in a bad mood one day, and decide to fire a random at-will employee. There is nothing inherently unlawful about doing that (even if it was an unwise business decision). As such, the fired employee probably cannot claim that they were wrongfully terminated.

But Employers Can't Fire Employees for Unlawful Reasons

Even though employers don't need a good reason to terminate an at-will employee, they are prohibited from terminating employees for unlawful reasons. Examples of unlawful reasons include:

• Firing an employee because of their race, gender, disability, sexual orientation, religion, or other protected characteristic;⁠19
• Firing an employee for their political beliefs or affiliations;⁠20
• Firing an employee because the employee requested time off that they are legally entitled to take;⁠21
• Firing an employee because the employee reported a violation of the law;⁠22 or
• Firing an employee for reasons that violated public policy.⁠23

Put simply: employers can fire at-will employees for any lawful reason (or no reason at all), but they can't fire employees if they are motivated by unlawful reasons.

Employment Contracts Sometimes Play a Role

Of course, not all employees are considered “at-will.” Some employees have contracts that limit their employer's ability to fire them.⁠24 In these situations, employees might be able to claim that they were wrongfully terminated merely because their employer lacked a good reason to fire them.

For example, when an employer agrees to hire an employee for a specific period of time but doesn't specify the circumstances under which the employment can be terminated, the employee can only be terminated under three circumstances:

• The employee willfully breaches one of his or her employment duties,
• The employee is habitually neglectful of his or her employment duties, or
• The employee is unable to perform his or her employment duties due to a continued incapacity.⁠25

These kinds of employment contracts can be entered into verbally or in writing. But the agreement must unambiguously specify that it is for a set period of time.⁠26

A contract can also limit the employer's ability to fire the employee if it requires the employer to have a good reason for the termination. For example, the employment contracts of company executives commonly have provisions that limit the circumstances under which they can be fired.

Likewise, employees who are part of a union are usually not “at-will” employees. Unions normally negotiate an employment contract that permits only “for cause” terminations.⁠27 This means that employees may only be let go if the employer has a good reason.

For these reasons, it is important for employees to examine their employment contract (if they have one) when they are fired.

Employers May Not Engage in Unlawful Discrimination

As mentioned above, employers are usually allowed to fire employees for any lawful reason.⁠28 But they are prohibited from firing employees if they are motivated by an unlawful reason.⁠29

One of the most common grounds for a wrongful termination claim arises when the employer has a discriminatory intent in firing the employee. In California, there are a variety of laws that prohibit discrimination in the workplace.

Discrimination Generally

The most important anti-discrimination law for California employees is the Fair Employment and Housing Act (known as “FEHA”).⁠30 It prohibits employers that have five or more employees⁠31 from discriminating against employees on the basis of their:

• Age, if the employee is 40 or older;
• Race (including hair texture and protective hairstyles), color, national origin, or ancestry;⁠32
• Religion;
• Physical or mental disability;
• Pregnancy, childbirth, breastfeeding, or related medical conditions;
• Medical condition;
• Genetic information;
• Marital status;
• Sex, gender, gender identity, or gender expression;
• Sexual orientation;
• Reproductive health decisionmaking; or
• Veteran or military status.⁠33

FEHA also protects any combination of these characteristics, as well as workers who are perceived to have a protected characteristic or who are associated with someone who has (or is perceived to have) one.⁠34

An employer cannot target an employee for termination for any of these characteristics.⁠35 And an employer may not create a work environment in which being a member of a protected class automatically puts a worker at a disadvantage or excludes them from something.⁠36

Likewise, an employer may not harass a member of a protected class for being part of that class.⁠37 And the employer may not create or maintain a hostile work environment that leaves the class member with no option other than to quit the job.⁠38

Of course, there are many caveats to these rules. To learn more about California's anti-discrimination laws, please review our article: Discrimination Laws in the California Workplace, Explained.

Although FEHA is California's broadest anti-discrimination law, various other laws in California also prohibit discrimination. A few of those are explored below.

Immigration-Based Discrimination

All persons, regardless of their immigration status, are protected by California's employment laws.⁠39 That does not mean, however, that immigration-based discrimination is unlawful. It merely means that non-citizens are protected against discrimination to the same extent as United States citizens.⁠40

In fact, employers are prohibited by law from hiring or continuing to employ undocumented immigrants.⁠41 So, to some extent, employers are required to consider an employee's immigration status.

The employer's ability to investigate their employees' legal status is limited, however. They may not request more or different documents than are required by the federal government.⁠42 Nor may they refuse to honor immigration-related documents that reasonably appear to be genuine.⁠43

And, if the employee is present in the United States legally, and the employer nevertheless discriminates against them on the basis of their status as an immigrant, the employer may have engaged in national origin discrimination.

It is unlawful for employers to discriminate against an employee based on their national origin.⁠44 National origin discrimination can include discrimination against those holding the type of driver's license that California gives to non-citizens.⁠45

Additionally, employers are prohibited from reporting or threatening to report their employees' citizenship or immigration status in retaliation for the employee's exercise of an employment-related right.⁠46

Language Discrimination

In some cases, an employer commits wrongful termination if they fire their employee for speaking a different language in the workplace.

In general, it is unlawful for employers to limit or prohibit the use of any language in any workplace.⁠47 These issues commonly arise when an employer adopts an English-only requirement in their workplace.

The purpose of the rule prohibiting language discrimination is to prevent employers from adopting policies that effectively discriminate against employees based on national origin.⁠48

As with many laws, there is an important exception to the rule prohibiting language discrimination. An employer may limit or prohibit the use of a language in the workplace if:

• The language restriction is justified by a business necessity,
• The employer has notified its employees of when the language restriction is required to be observed,
• The employer has notified its employees of the consequences of violating the language restriction, and
• There is no alternative practice to the language restriction that would accomplish the business purpose equally well with a lesser discriminatory impact.⁠49

A language restriction is considered a business necessity when it is needed to ensure the safe and efficient operation of the business. The language restriction must also effectively fulfill the business purpose it is supposed to serve.⁠50

Political Discrimination

An employer can commit wrongful termination if they fire an employee for their political views or activities. California law prohibits employers from controlling their employees' political activities.⁠51 This means that an employer may not punish an employee for being a member of a specific political party. Nor may employers forbid employees from going to political rallies or becoming candidates for public office.

Employers are also prohibited from trying to coerce or influence their employees to take any sort of political action.⁠52 And employers are prohibited from retaliating against employees who oppose such practices.⁠53

Political discrimination can be serious. In some cases, it is criminally punishable as a misdemeanor.⁠54 There are also fines, fees, and civil damages that can be imposed against the employer (and sometimes recovered by the employee).⁠55

Discrimination Against Victims of Crimes

Employees who are the victims of violence or other serious crimes have a right to be free from discrimination at work. Since January 1, 2025, these protections are part of the Fair Employment and Housing Act.⁠56

Employers may not fire, discriminate against, or retaliate against an employee because of the employee's status as a victim of a “qualifying act of violence,” or because a member of the employee's family is a victim, if the employee gives notice of that status or the employer has actual knowledge of it.⁠57

A qualifying act of violence includes domestic violence, sexual assault, stalking, and any act or pattern of conduct in which a person causes bodily injury or death to another person, brandishes or uses a firearm or other dangerous weapon, or uses (or threatens to use) force against another person to cause physical injury or death. It does not matter whether anyone is arrested for, prosecuted for, or convicted of a crime.⁠58

Victims also have a right to take time off from work to obtain a restraining order or other relief to help ensure their own health, safety, or welfare, or that of their child. Employers may not fire, discriminate against, or retaliate against an employee for doing so.⁠59

Similarly, employers may not fire or discriminate against an employee for taking time off to appear in court to comply with a subpoena or other court order as a witness in a judicial proceeding.⁠60 And, since January 1, 2026, an employee who is the victim of certain crimes, or whose family member is a victim, may take time off to attend judicial proceedings related to that crime.⁠61

In general, employees must give their employer reasonable advance notice before taking these kinds of time off, unless advance notice is not feasible.⁠62 When an unscheduled absence occurs, the employer may not take action against the employee if the employee provides certification within a reasonable time, such as a police report, a court order, documentation from a medical professional or counselor, or a signed written statement.⁠63

Depending on the size of the employer, the victims of crimes may have several other rights. If the employer has 25 or more employees, an employee who is a victim, or whose family member is a victim, may also take time off to:

• Seek medical attention for injuries caused by the qualifying act of violence;
• Obtain services from a domestic violence shelter, program, rape crisis center, or victim services organization;
• Obtain psychological counseling or mental health services;
• Participate in safety planning, or relocate and secure a new residence; or
• Obtain legal services, or prepare for and attend related legal proceedings.⁠64

Victims (and employees whose family members are victims) also have a right to reasonable accommodations for their safety at work, such as a transfer, a modified schedule, a changed work station, or new safety procedures.⁠65

Employees may use their available paid leave, including vacation or paid sick leave, for these absences.⁠66 And because these protections are part of FEHA, employees enforce them the same way as other discrimination claims: by filing a complaint with California's Civil Rights Department (CRD).⁠67

Criminal Conviction Discrimination

In California, employers that have five or more employees are prohibited from asking job applicants about their conviction history before making a conditional offer.⁠68 After a conditional offer is made, the employer may conduct a background check.⁠69 But even then, employers will be prohibited from considering any of the following:

• An arrest not followed by conviction, except under limited circumstances (like when the employee or applicant is currently out on bail);
• Referral to or participation in a pretrial or posttrial diversion program; or
• Convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law.⁠70

If, after a conditional offer is made, the employer conducts a background check and discovers a prior conviction, they must conduct an individualized assessment of the applicant's conviction history. The goal of this individualized assessment is to determine whether the applicant's conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.⁠71

Employers May Not Engage in Unlawful Retaliation

All California employers have legal obligations they must follow. When they violate the law in some way, employees may wish to complain about or report the employer's wrongdoing. In many cases, employees are protected from being punished or fired if they do so.

This section explores the different kinds of retaliation that may result in a valid claim of wrongful termination.

Reporting Unlawful Activities

In California, if an employee reasonably believes that the employer has violated a law or regulation, the employee has a right to report that violation to the government or a law enforcement agency. The employee also has a right to report the violation internally: to a person with authority over the employee, or to another employee who has the authority to investigate, discover, or correct the violation.⁠72 These protections apply even if reporting legal violations is part of the employee's job duties.⁠73

Employers are prohibited from punishing or firing employees for disclosing information about a legal violation in any of these ways. Employees are also protected if the employer merely believes that the employee disclosed, or might disclose, information about a violation.⁠74

Along these same lines, an employer cannot adopt or enforce any rule that prevents employees from reporting legal violations, providing information to, or testifying before any government agency that may be investigating or prosecuting the employer for legal violations.⁠75

Finally, employers cannot fire or punish employees for refusing to participate in unlawful activities.⁠76

Timing matters in these cases. If an employer punishes or fires an employee within 90 days of the employee's protected activity, such as reporting a legal violation or complaining about unpaid wages, the law presumes that the employer retaliated. The employer then bears the burden of rebutting that presumption.⁠77

An employer who discharges an employee for reporting unlawful activities commits wrongful termination.

Discrimination and Harassment Complaints

Employers are prohibited from firing or punishing employees who complain about, report, or otherwise oppose unlawful discrimination or harassment.⁠78

An employer who fires an employee for opposing unlawful discrimination or harassment has committed wrongful termination.

Complaining About Unpaid Wages

Employees have a right to file a complaint with California's Labor Commissioner when they believe they have been underpaid.⁠79 This right would be meaningless if employers were allowed to fire employees who file such complaints.

California law prohibits employers from terminating, discharging, or in any manner retaliating against employees who file a wage and hour complaint with the Labor Commissioner.⁠80

Additionally, employees have a right to complain to their employer that they are owed unpaid wages. Even if no claim is filed with the Labor Commissioner, employers are prohibited from terminating, discharging, or in any manner retaliating against employees for complaining about unpaid wages.⁠81

To learn more about wage claims with the Labor Commissioner, please review our article: How to File a Wage & Hour Claim in California.

Discussing Income

Employees have a right to discuss the amount of their wages with other employees. Employers are prohibited from firing their employees for disclosing the amount of their wages to anyone.⁠82

Complaining About Unlawful Work Conditions

Employers are prohibited from firing or punishing employees who complain about workplace safety issues.⁠83 Employers are also prohibited from firing or punishing employees who report an issue of employee safety or health to a government agency.⁠84 This means that employees cannot be fired for filing an Cal/OSHA complaint.

Additionally, employers usually cannot fire or punish an employee who refuses to perform work that would violate any occupational safety or health standard.⁠85 And employees are protected if they have to testify in a court proceeding about dangerous work conditions.⁠86

Discussing Work Conditions

Employees have a right to discuss their work conditions, as long as those discussions don't involve matters that may be trade secrets or legally protected.⁠87

In keeping with this right, employers are prohibited from terminating employees for disclosing information about their working conditions to other people.⁠88 Again, this rule is limited to information that is not proprietary, secret, or otherwise legally protected.

This rule is mainly intended to protect employees who complain or discuss potentially unsafe or unlawful working conditions.

Requesting a Reasonable Accommodation

Several types of employees have a right to receive a reasonable accommodation from their employer. A reasonable accommodation is an adjustment to the employee's work environment or job duties that can enable the employee to perform the essential functions of a job in suitable conditions.

Common examples of situations in which a reasonable accommodation may be required include the following:

• Employees with disabilities often have a right to work under different conditions than other employees.⁠89
• They may also have a right to time off of work, as an accommodation for their disability.⁠90
• Religious employees may have a right to an accommodation of their religious practices and observances.⁠91
• Employees who have difficulty reading may have a right to a reasonable accommodation.⁠92
• Employees with substance abuse problems may have a right to a reasonable accommodation for them to participate in an alcohol or drug rehabilitation program.⁠93

Employers generally cannot retaliate against employees in these situations for requesting an accommodation, regardless of whether the request is granted.⁠94 This means that an employer will usually commit wrongful termination if they discharge an employee for requesting or requiring a reasonable accommodation.

Filing a Workers' Compensation Claim

Under California law, it is the state's policy “that there should not be discrimination against workers who are injured in the course and scope of their employment.”⁠95 California courts have interpreted this policy to protect employees from retaliation for filing a workers' compensation claim.⁠96

The broad nature of that policy favors employees who are fired or treated unfairly as the result of a job-related injury.⁠97 In general, an employer commits wrongful termination if they fire an employee in retaliation for filing a workers' compensation claim.

Employers May Not Fire Workers for Taking Protected Time Off

There are many situations in which employees have a legal right to take time off from work. When an employer fires an employee for taking that time off, they usually will commit wrongful termination. This chapter explores the most common types of leave that employees have a right to take.

Family and Medical Leave

Most employees in California have a right to take up to 12 workweeks of family or medical leave in a 12-month period.⁠98 When an employee has a right to take family or medical leave, the employer is prohibited from firing them for exercising it.⁠99

Family or medical leave can be taken for any of the following reasons:

• To bond with a child who was born to, adopted by, or placed for foster care with, the employee;
• To care for a family member who has a serious health condition: the employee's child, parent, parent-in-law, grandparent, grandchild, sibling, spouse, domestic partner, or a designated person;
• Because the employee is suffering from a serious health condition rendering them unable to perform the functions of their job; or
• Because of a qualifying exigency related to the covered active duty of the employee's spouse, domestic partner, child, or parent in the United States Armed Forces.⁠100

A designated person is any individual related by blood, or whose association with the employee is the equivalent of a family relationship. The employee can identify the designated person at the time they request the leave, and the employer may limit the employee to one designated person per 12-month period.⁠101

To be eligible for family or medical leave, the following requirements must be met:

• The employer must have at least five employees;⁠102
• The employee worked more than 12 months for the employer prior to the date that the period of leave is taken;⁠103 and
• In the past 12-month period, the employee worked at least 1,250 hours for the employer.⁠104

When these requirements are met, the leave is job-protected: the employer must guarantee the employee the same or a comparable position when the leave ends.⁠105 The leave itself is generally unpaid, although employees can often use accrued paid time off during the leave, and may qualify for partial wage replacement through State Disability Insurance or Paid Family Leave benefits.⁠106

A serious health condition, for these purposes, is an illness, injury, impairment, or physical or mental condition that involves either of the following:

• Inpatient care in a hospital, hospice, or residential health care facility; or
• Continuing treatment or continuing supervision by a health care provider.⁠107

Inpatient care means a stay in a hospital, hospice, or residential health care facility, as well as any subsequent treatment in connection with that inpatient care.⁠108

Maternity Leave

New mothers and fathers have a right to take the family and medical leave discussed above. That leave is usually taken to bond with the new child. But pregnant mothers also have a right to take a different kind of leave: pregnancy disability leave.⁠109

Employees that are disabled by their pregnancy, by childbirth, or a related medical condition have a right to take up to four months of leave from work.⁠110 This leave can be taken in addition to the 12 weeks of bonding time described above,⁠111 but it only continues for as long as the employee is disabled.⁠112

To be eligible for pregnancy disability leave, the employee must work for an employer that regularly employs five or more employees.⁠113

A woman is disabled by her pregnancy if, in the opinion of her health care provider, she is unable to perform any one or more of the essential functions of her job because of her pregnancy.⁠114 A woman might also be disabled by her pregnancy if she suffers from one or more of the following conditions:

• Severe morning sickness,
• Prenatal or postnatal care,
• The need for bed rest,
• Gestational diabetes,
• Pregnancy-induced hypertension,
• Preeclampsia,
• Post-partum depression,
• Loss or end of pregnancy, and
• Recovery from loss or end of pregnancy.⁠115

The common thread in these examples is that, in the view of the employee's health care provider, the condition prevents her from performing an essential function of her job, or from doing so without undue risk.⁠116

If an employee has a legal right to take pregnancy disability leave and they are fired for taking it, the employee probably has a claim for wrongful termination.⁠117

Reproductive Loss Leave

Employees who suffer a reproductive loss have a right to take up to five days of leave from work. A reproductive loss event means a miscarriage, a stillbirth, a failed adoption, a failed surrogacy, or an unsuccessful assisted reproduction.⁠118

This right applies to employers with five or more employees, and the employee must have worked for the employer for at least 30 days before the leave begins.⁠119 The days need not be taken consecutively, but the leave must generally be completed within three months of the loss. If the employee experiences more than one reproductive loss in a 12-month period, the employer can cap the total leave at 20 days.⁠120

The leave may be unpaid, although the employee can choose to use accrued paid time off (like vacation or sick leave).⁠121 The employer must keep the employee's request confidential. And employers may not fire, retaliate against, or otherwise punish an employee for requesting or taking reproductive loss leave.⁠122

Bereavement Leave

Employees also have a right to take up to five days of bereavement leave upon the death of a family member. For these purposes, a family member means the employee's spouse, child, parent, parent-in-law, sibling, grandparent, grandchild, or domestic partner.⁠123

As with reproductive loss leave, this right applies to employers with five or more employees, and the employee must have worked for the employer for at least 30 days before the leave begins. The days need not be consecutive, but the leave must be completed within three months of the death.⁠124

Bereavement leave may be unpaid, although the employee can choose to use accrued paid time off. Employers may not fire, retaliate against, or otherwise punish an employee for taking it.⁠125

Sick Leave

California generally requires employers to provide paid sick leave. Most employees accrue at least one hour of paid sick leave for every 30 hours worked, and must be allowed to use at least 40 hours or five days of sick leave per year, whichever is greater.⁠126

Employers may not deny an employee the right to use accrued sick days. Nor may they fire, threaten to fire, demote, suspend, or in any manner discriminate against an employee for using accrued sick days or attempting to exercise the right to use them.⁠127 If an employer takes one of these actions within 30 days of the employee filing a complaint about sick leave violations, cooperating in an investigation, or opposing an unlawful sick leave policy, the law presumes the action was retaliatory.⁠128

Sick leave can be used for the diagnosis, care, or treatment of an existing health condition, or for preventive care, for the employee or the employee's family member.⁠129 For these purposes, a family member can include a designated person: someone the employee identifies at the time they request the leave.⁠130

Employers who provide more sick leave than the law requires must also let employees use at least the amount of sick leave they would accrue in six months, each year, for family care. An employee who is fired for doing so is entitled to reinstatement and damages.⁠131

Lactation Breaks

Employers can commit wrongful termination by firing an employee who has requested or expressed a desire to take a lactation break.

A lactation break is a period of time during the work day for nursing mothers to express breast milk (i.e., a break to pump). Both state and federal laws require California employers to provide lactation breaks.⁠132

The right to a lactation break does not apply if it would seriously disrupt the operations of the employer.⁠133 This exception is hard to meet, however, and employers should be cautious before invoking it.

Denying a required lactation break, or an adequate space to pump, is treated as a failure to provide a rest period. The employee is owed one additional hour of pay at their regular rate of compensation, and can file a complaint with the Labor Commissioner.⁠134

Time Off to Vote

All employers in California are required to permit their employees time off to vote in any statewide election.⁠135 This rule applies if the employee will not have sufficient time outside of working hours to vote.⁠136

Employers can require that the employee take the time off to vote either at the beginning or end of the regular working shift.⁠137 And the employee can be required to give at least two working days of notice for the necessary time off.⁠138

Time Off for Military Leave

Employees who join the military generally have a right to take up to five years of leave while they serve.⁠139 When they return, they have a right to prompt reemployment with the employer.⁠140

An employer may not punish or fire an employee for joining the military or for needing up to five years of time off to serve.⁠141 Additionally, when the employee returns from leave, the employer may not fire the employee without cause for one year (if the employee's period of service was more than 180 days).⁠142

Time Off for Jury Duty

California employees are sometimes required to participate in jury duty. In addition to being a civic duty, jurors are often required by law to attend court proceedings. As such, employers are prohibited from firing or in any manner discriminating against employees who take time off to serve as required by law on an inquest or trial jury.⁠143

Importantly, however, the employee must give the employer reasonable notice that they will be required to serve, unless giving advance notice is not feasible.⁠144

Parents and School-Related Activities

Parents who work for larger employers have a right to take up to 40 hours each year off for the purpose of certain child-related activities.⁠145 This protection applies when the employer has 25 or more employees working at the same location. And “parent” is defined broadly: it includes guardians, stepparents, foster parents, grandparents, and anyone who stands in the place of a parent to the child.⁠146

Protected child-related activities include:

• Finding, enrolling, or reenrolling a child in a school or with a licensed child care provider,
• Participating in the activities of the child's school or licensed child care provider, and
• Addressing a child care provider or school emergency.⁠147

Employees must give reasonable notice to their employer before taking planned time off for enrollment or school activities, and that kind of time off is limited to eight hours in a calendar month. Time off to address a child care provider or school emergency also requires notice, but it is not subject to the monthly cap.⁠148

Additionally, under certain circumstances, employers of all sizes are prohibited from firing parents for taking time off to appear at the school of their child if the child has been suspended and the teacher requests a meeting.⁠149 The parent must give reasonable notice to the employer that he or she is requested to appear in the school.⁠150

Employers May Not Fire Workers in Violation of Public Policy

Sometimes an employer will fire someone for reasons that don't technically violate the law, but the employer has nevertheless violated a fundamental public policy. In those cases, the employee might still have a claim for wrongful termination.⁠151

The idea behind these kinds of claims is that employers are required, at a minimum, to know the fundamental public policies of the state and nation as expressed in their constitutions and statutes.⁠152

There are a variety of actions that can constitute a violation of public policy in California. The courts have laid out four basic requirements:

• The policy must be supported by constitutional or statutory provisions (or by administrative regulations that implement them);⁠153
• The policy must benefit society at large, rather than serving merely the interests of the individual employee;
• The policy must have been well-established at the time the employee was fired; and
• The policy must be fundamental and substantial.⁠154

The most obvious example of a termination that violates public policy would be when an employer fires an employee for refraining to do something harmful or illegal.⁠155 Likewise, an employer might violate public policy if they fire an employee for refusing to sign an illegal or unenforceable contract.⁠156

There are, of course, many types of terminations that might violate public policy in the State of California. If you are unsure whether you have been terminated in violation of public policy, discuss your case with a qualified employment lawyer.

Special Types of Wrongful Termination Claims

The sections above described the most common types of wrongful termination cases in California. Sometimes, however, employees face unique issues in fighting their wrongful termination case.

Mixed-Motive Cases

To succeed in a lawsuit, employees are generally required to show the employer was motivated by an unlawful reason when they terminated the employee.⁠157 The problem in many cases is that an employer's motivations will not always be clear.

In some cases, the employer will be motivated in part by legitimate business reasons, but will also be motivated by improper reasons. In other words, an employer can have several motivations for taking a negative employment action against an employee. These are called mixed-motive cases.⁠158

In a mixed-motive case, the discriminatory intent must have been a “substantial motivating factor” in the negative employment action taken against the employee.⁠159 It is not enough for the employee to merely show that the discrimination was a motivating factor, it must have been a substantial motivating factor.

An employee is not required to prove that the discriminatory motivation was the sole motivation behind a negative employment action. The employee is only required to show that there was a causal connection between the employee's protected characteristic and the action.⁠160

An employer can reduce its liability if it can show that a legitimate, non-discriminatory motive alone would have led it to make the same decision anyway, regardless of the discrimination.⁠161

This would not necessarily mean that the employer would be off the hook, however. The employee might still be entitled to attorney fees and costs, as well as certain types of non-monetary awards, but, again, only if they could show that the discrimination was a substantial motivating factor in the termination.⁠162

Constructive Discharge Cases

Employees generally cannot sue their employer for wrongful termination if they voluntarily resign or quit (although they might have other grounds for a lawsuit). This creates a perverse incentive for employers who want to fire employees: they can avoid wrongful termination lawsuits if they can somehow get the employees to quit first.⁠163

To combat this problem, courts in California have adopted the doctrine of constructive discharge. Constructive discharge occurs when the employer's conduct effectively forces an employee to resign.⁠164

In a constructive discharge case, the employee might technically say “I quit,” but the employment relationship is treated as having been ended involuntarily by the employer's acts, against the employee's will. Courts will therefore treat the resignation as a firing.⁠165

To amount to a constructive discharge, the employer must create a work environment that is so intolerable that any reasonable employee would resign rather than endure such conditions.⁠166 Put another way, the employer's actions or the conditions of employment must effectively leave the employee with no reasonable alternative except to quit.

This test is an objective one. Meaning, it is judged from the perspective of a reasonable person, not from the perspective of the individual employee. And the worker must usually prove that the employer either intentionally created or knowingly permitted the intolerable working conditions.⁠167

It's important to remember that the doctrine of constructive discharge has strict limitations. Employees should not rely on it when deciding whether to quit. In fact, the California Supreme Court has specifically warned that “an employee cannot simply 'quit and sue,' claiming he or she was constructively discharged.”⁠168

Rather, the doctrine of constructive discharge should only be considered by employees after the employment relationship has ended, to determine whether they have any rights they might have previously overlooked.

Steps to Take When You Have Been Terminated

Wrongful termination could come as a shock, or it could be a long time coming. Either way, some helpful tips are listed below. When reading them, please keep in mind that this article does not contain legal advice and should not be relied on.

Document Everything

Even though you may be angry, in shock, or scrambling to figure out what to do, document what happened, why you were terminated, what your employer did or said, and in what manner you were terminated.

If you are unable to gather any formal documents or evidence, simply writing a detailed account of the events soon after they have happened can help.

These facts will be important for determining whether you have been wrongfully terminated. And, if your case ever goes to court, your notes can help you refresh your memory when explaining your case.

Review the Employment Contract

If you have a contract or an agreement, review it to determine whether it limits the circumstances under which you can be fired. Your employer may be in violation of the contract, even if you are given what seems to be a lawful reason to terminate employment.

Be Civil

It is understandable to be angry over the injustice of being wrongfully terminated. However, acting out against your employer and using uncivil language will make it harder to recover damages later.

Stay Safe

If you have been terminated from a hostile environment, depart safely and quickly. You are not required to stick around after you have been terminated. Additionally, unless you have a contract or employment agreement that mandates it, you are not legally required to attend an exit interview or a final meeting with anyone.

Don't Retaliate

It may be tempting to “get back” at your employer by stealing things, badmouthing the company, destroying property, or publicly humiliating supervisors or the company. But even if you were fired for unlawful reasons, committing crimes and legal violations against your employer will make it much more difficult to collect damages in a lawsuit.

Contact a Lawyer

The best time to contact a lawyer is before termination happens, when you suspect that you may be wrongfully terminated in the near future. Unfortunately, wrongful termination isn't always easy to foresee.

The second best time to contact an attorney is immediately after termination if you know or suspect that you have been wrongfully terminated.

Wrongful termination can have far-reaching consequences, and you may be able to recover if your employer has terminated you for unlawful reasons.

File a Claim or Lawsuit

If the evidence in your case is strong, you may have a right to recover damages against your employer. You might even have a right to get your job back.

The exact procedure will depend on the type of harm you suffered. In some cases, the employee is required to first file an administrative complaint with a governmental agency that explains their employer's wrongdoing. In other cases, the employee can go directly to court and file a lawsuit.

For example, discrimination and retaliation claims under the Fair Employment and Housing Act must usually begin with a complaint to the Civil Rights Department (CRD), which must be filed within three years of the violation. Once the CRD issues a right-to-sue notice, the employee has one year to file a lawsuit.⁠169

Keep in mind that the deadline to file a claim or a lawsuit can be short. As such, it is best to act quickly after you have been fired if you wish to stand up for your rights.

Again, discussing your case with a qualified attorney can be a good idea to help you understand how quickly you must file your claim or lawsuit, which procedures you must follow, and whether your case is strong. Many attorneys are willing to take on wrongful termination cases with no upfront costs.

Damage Awards in Wrongful Termination Lawsuits

In the case of wrongful termination, an employee may get compensatory damages, punitive damages, or, in some cases, reinstatement to his or her former job.

Compensatory Damages

Compensatory damages are a type of monetary award intended to make the employee “whole” again.⁠170

This type of damage award can include pay for the employee's missed wages, back pay for unpaid wages (if any), or other compensation for harm the employee experienced as a result of being wrongfully terminated. Depending on the circumstances, it might also include damages for emotional distress or mental suffering.⁠171

This type of award is usually roughly equal to what the employee would have received if he or she had not been fired. It might also include interest on the employee's award.

Legal Costs

In many cases, employers who lose a wrongful termination lawsuit are required to pay for the legal costs of the employee's case.⁠172 Those can include expert witness fees, attorney fees, and court costs.

The reverse is usually not true in discrimination cases. A prevailing employer can recover its fees and costs only if the court finds that the employee's case was frivolous, unreasonable, or groundless.⁠173

Punitive Damages

Punitive damages are a type of monetary punishment ordered by the court. On top of quantifiable damages, such as lost pay and legal fees, the court may punish a defendant by making him or her pay additional damages.⁠174

Punitive damages are usually only awarded when the defendant did something that was particularly heinous or offensive, which the law describes as acting with “oppression, fraud, or malice.”⁠175 They can serve to deter the defendant from committing the same act in the future, or deter others who are in similar situations as the defendant from engaging in the same wrongful behavior.

Reinstatement

In some cases, an employee may be able to either get his or her old job back, or a similar position of the same seniority.⁠176

This specific remedy, however, is somewhat rare in wrongful termination lawsuits and may not be available or even desirable for the employee. When reinstatement isn't available due to hostility between the parties, courts will sometimes award front pay: the employee's projected future earnings.⁠177