Frequently Asked Questions About Employment Law
---- Does an employer need a reason to fire me?
---- Does an employer need a reason to demote me?
---- Is an employer required to warn me before firing me?
---- Can an employer fire me for something I did not do?
Answer: If you are an at-will employee, you can be fired or demoted on a whim, without warning, for no reason at all, or even for a false reason.
Of all the legal concepts that impact the lives of average people, the concept of at-will employment is without a doubt the most misunderstood. A contract is formed when there has been an offer by one party, and an acceptance of the terms of that offer by another party. When you are employed by someone else, you are subject to an employment contract.
This is the first concept most people don’t understand. If you ask someone if they have an employment contract, they will invariably say no. Every employee has an employment contract. The contract may not be in writing, but it exists nonetheless. The employer offers to pay a set amount for a given service, and the employee accepts. That is a contract. So, if you are working, first understand that you have a contract.
As with any contract, there are terms to your employment agreement, both express and implied. The employer said you would work eight to five, get an hour off for lunch, have a great dental plan, and would be paid $4,500 per month. Those are “express” terms – those terms that are actually stated in the written or oral contract. The “implied” terms are those that are a natural part of the contract, even if you never discussed them. No contract can cover every possible contingency, so many of the terms must be implied under a reasonableness standard. In the context of your employment agreement, even though you never discussed them when you were hired, it would be safe to say that the implied terms of the contract include such items as you will not be required to do anything illegal, that you will show up to work wearing clothes, and your employer will not pay you with old Confederate dollars from the Civil War. Like any contract, you and your employer are bound by the terms of the contract, both express and implied.
So, one day you show up at work wearing a fish tie, and your boss fires you for dressing inappropriately. You are of course outraged, because you have received nothing but complements regarding your fish tie, and your employer never told you about any anti-fish tie policy. So you run to an attorney screaming “wrongful termination.” But what makes the termination “wrongful?” There is no State or Federal law guaranteeing the right to wear aquatic ties. Assuming the wearing of such ties is not required by your religious beliefs, your only possible cause of action is for breach of the employment contract. Therefore, you and your attorney must first determine what are the terms of your contract regarding termination. So, right now, pull out a piece of paper and write down all the express and implied terms of your employment contract regarding termination.
Your paper is blank, isn’t it? Of all the people that call my office, 95% cannot list any terms of the contract that would prevent the employer from terminating them on a whim. Oh, they will tell me what the contract should say, or what they assumed it said, but rewriting contracts after the fact doesn’t get you very far. They will say, “aren’t they required to at least write me up or warn me or suspend me or something before they can fire me?” Well of course, what was I thinking? It’s the “Duty To Warn Employees” law, located right after the statute requiring police officers to give you at least three warnings before they write you a speeding ticket. No, there is no statute requiring employers to warn employees prior to terminating them. Indeed, the law is exactly the opposite.
Here is the simple rule, and it may challenge your fundamental understanding of employment. If there is no agreement to the contrary, an employer does not need any reason to fire you. You can be fired on the complete whim of your employer. This is called “at-will” employment. Just as you are free to leave a job whenever you please, the employer can fire you whenever he, she or it pleases.
The reason is the at-will
employment presumption that exists in California.
That presumption comes from a statute that is
deceiving in its simplicity. Labor Code section
2922 states: "An employment, having no specified
term, may be terminated at the will of either party
on notice to the other. Employment for a specified
term means an employment for a period greater than
Think of it this way if it helps you to cope. Imagine that you've been working at a job for a few months, and a much better opportunity comes along. You accept the new position, and then go into your supervisor's office to give your two weeks notice. He listens politely, and then states, "No, that's not going to work for us. We really need you here, and we can't afford to train someone new, so you call that employer and tell them you can't take the job. I promise, though, we'll take another look at the situation in a few years and see if we can't let you go then. We've paid you every week and done nothing wrong, so it's not fair that you are trying to leave. And if you do leave, we'll sue you for wrongful quitting."
Bizarre, of course. No one ever thinks in terms of the employer being able to keep you from leaving, but why is it any less strange to assume that an employer must keep you once they decide they no longer want you around? If you are free to terminate the arrangement whenever you want, shouldn't that be equally true for the employer? It is actually very strange that most people think they have a right to force themselves on an employer after the employer no longer wants them.
Now, if you have an actual contract for a given period of time, that's a different situation. If you go to work for a company and sign a five-year agreement, then it would be a breach of the agreement if your employer tried to fire you before the end of the term. In that circumstance, your employer would need "good cause" to fire you during that year. Also, some people have agreements that specifically provide that they can only be terminated for cause. These are usually people that belong to unions, government employees, teachers and others. But under California law, an employment agreement that is not for a specific period of time is deemed to be at-will. The vast majority of workers are at-will employees.
"So how can you ever sue for wrongful termination?", you ask. Because the law also states that while you can be fired for no reason, you cannot be fired for a reason that violates public policy. The most obvious example of this is discrimination. An employer cannot fire an employee because of his or her race, gender, age, nationality, et cetera. And there are many other public policies. An employee can't be fired for serving on jury duty, or voting, or for trying to form a union, or for taking a leave under the Family Medical Leave Act (FMLA), or for filing a workers compensation claim. The list goes on and on.
Even when people understand what "at-will employment" means, they still fight the concept. I get calls every week that start with, "Several attorneys have told me that my employer can fire me on a whim, but can they REALLY fire me when all I did was [fill in the blank] . . .? Yes, you REALLY can be fired when all you did was . . . . Here are some real cases to illustrate the concept of at-will employment.
The Case of the Smoking Employee
Maria wanted to stop smoking, but smoking seemed to provide the only release from her hectic life. Maria worked in an office building where smoking was not permitted, so she could only smoke on her breaks and had to leave the building to do so. Most of her fellow smokers would congregate around the back door to smoke their cigarettes, but Maria preferred to sit in her car and listen to music on the car radio during her 15 minute breaks.
One day, as she had done dozens of times before, Maria was sitting in her car smoking a cigarette during a proper break. This time, however, the owner of the business happened to look out the window and saw Maria smoking in her car. For some crazy reason, and with no basis for jumping to such an absurd conclusion, the employer decided that Maria was smoking marijuana, and fired her the moment she returned from her break.
A clear case of “wrongful termination,” correct? After all, Maria did absolutely nothing wrong, and there was no reason for the employer to fire her. That was what Maria and her attorneys thought, and at the subsequent trial, Maria proved beyond dispute that she had not been smoking marijuana, and therefore should not have been fired. The jury agreed and awarded her almost a year’s worth of wages as damages. Good for Maria.
But that was not the final word. Although the jury found in her favor, the California Court of Appeal reversed the verdict, and she ended up with nothing. Why? Again, you must think in terms of the at-will rule. If an employer can fire you for no reason, then what difference does it make if the employer makes a mistake, or for that matter, simply makes up a reason? People have a real problem with this concept, because their logic is clouded by a concept of fairness. It seems horribly unfair that Maria was terminated for something she didn’t do, but even if that is proven to be the case, the employer can just say, “so sorry we were wrong about that marijuana thing, but now you’re fired because we don’t like the way you comb your hair.” The appeal court held that whether Maria was using marijuana or not was of no importance. Maria could be fired at the will of the employer, even if the reasons were based on a misunderstanding.
Nobody Likes a Snitch
Ron loved music, and could not believe his good fortune when he landed a job at a record company. It was an entry level job, but the “benefits” included meeting some of his favorite musicians, and even occasionally having lunch with them when they would take a break during a recording session.
To promote the company’s music and artists, company employees in charge of promotion could simply sign out a hundred CDs or so and give them away to radio stations and record stores in order to promote new albums. Ron happened to notice that his supervisor was always helping himself to large quantities of CDs, but never seemed to use them for promotions. He soon found out why. It turned out that Ron’s supervisor was making extra money by selling the promotional copies to record stores. Ron didn’t know what to do. He did not want to report his supervisor, and for all he knew, this might be an unofficial perk. He eventually decided, however, that if this was illegal activity and he failed to report it, he would be viewed as an accomplice. So, without making a big deal of it, he mentioned to his supervisor’s boss what was occurring.
It turned out that this practice was highly improper, and Ron’s supervisor was immediately fired. And after thanking Ron for bringing this matter to the attention of the company, Ron was also fired. It was explained to Ron that while he had done the right thing, he had rendered himself unemployable. With his demonstrated lack of loyalty to his supervisor, no other supervisor would want to work with him. He was told that “nobody likes a snitch.”
Ron cried “wrongful termination,” and went in search of an attorney. Under the at-will rule, an employer can fire an employee for no reason, but not for a reason that violates public policy. For example, an employer cannot fire someone on the basis of race, because that would violate the public policy against discrimination. Similarly, there is a “whistle-blower” exception that holds that it is against public policy to fire an employee for reporting wrongdoing to a regulatory agency. If employees could be fired, for example, for reporting a safety violation, then employees would be far less likely to report such violations. So, Ron found an attorney that was willing to pursue his case under the whistle-blower exception to the at-will rule. Years later and after spending a large amount of money on court costs, Ron’s case against the music company failed. Do you need to hear it again? Absent a contract to the contrary, the employer can fire you for any reason whatsoever, or for no reason at all. If the employer wants to fire you for ratting on your boss, that is perfectly legal. The court held that Ron’s case did not fall within the whistle-blower exception. The whistle-blower exception is designed to keep employers from retaliating against employees that report illegal conduct. For example, if an aircraft mechanic knows that the company is lying to the FAA about repairs, we as a society want him to feel free to report that fact without fear that he will be terminated as a result. At one time the courts required that the employee be an actual whistle-blower. In other words, the case would be dismissed unless the employee could show that he was terminated only after he had reported the wrongful conduct to some regulatory agency. That rule has been modified somewhat, and now a case will survive if the employee can show that he was terminated because the company believed the employee was about to report the wrongful conduct. But in Ron’s case, neither rule would provide him relief. The company was not doing anything illegal; the company was the victim. There is no public policy designed to encourage employees to report internal squabbles, so the termination was not a violation of public policy. The court held that Ron was not entitled to any protection for reporting a theft within the company.
The usual office politics do not violate public policy, per se. We get many calls from employees who were fired because the boss wanted to give their job to a family member, or they were fired because they were too good at their job, and the boss felt threatened. There is no, "Protection Against Threatened Bosses Act" or anti-nepotism law. Obviously, either one of these situations could constitute a violation of public policy if the conduct was based on a racial preference, for example. But that is racism, not office politics. If your boss promotes someone over you with far less experience because they are golfing buddies, that is not actionable unless there is some seniority agreement or other basis that would make the conduct a violation of public policy.
The Freedom to Speak Your Mind
“It’s a hobby. Some people like to play musical instruments or collect stamps; I like to write.” That is how Sharon explained her passion for publishing her blog on the Internet. In the olden days (about five years ago) people were content to write their daily musings in a personal journal, seen by no one except close friends and trespassers. With the advent of the Internet, there has inexplicably come the desire to publish even the most mundane thoughts for all the world to see.
In Sharon’s case, her weblog, commonly known as a “blog”, was a daily report of her life, which included what was going on at work. It was not at all mean-spirited, but if she felt someone had acted unfairly at work, she might elect to report that fact in her blog. Even then, however, in order to avoid embarrassing the people she discussed, she never mentioned anyone by name.
It didn’t take too long until word of her blog spread through her workplace, and it took even less time for one of her supervisors to take offense at something Sharon had written. When Sharon showed up for work the next day, she was fired on the spot.
“Now wait a second,” you say, “that is a violation of her First Amendment right to free speech.” An employer does not need a reason to fire an employee, but the reason cannot violate public policy. Surely this violates her right to free speech, the most fundamental and sacrosanct of all public policies in America. Not only that, but Sharon was fired for something she was doing on her own time. That can’t possibly be legal, right?
We’ll take them in turn. Since Sharon was just speaking her mind, was her termination a violation of her right to free speech? The First Amendment states that “Congress shall make no law . . . abridging the freedom of speech.” Contrary to another popularly held misconception, the right to free speech only protects you from intrusion by the government, not by individuals or companies. The First Amendment does not prevent a private employer from limiting what you can say. Sorry Sharon, you have the absolute right to speak your mind, but your employer doesn't have to put up with it.
How about the fact that Sharon did this on her own time? Can an employer seek to control what an employee does on his or her own time? Most employees will scream, “what I do on my own time is my own business”, but that is not true. To use an extreme example to illustrate the point, assume that an employer found out that one of its employees was burglarizing homes on the weekend. Few would argue that the employer is somehow required to keep a burglar on the payroll. (Some will cry “innocent until proven guilty”, but again, only the government must treat you as innocent until proven guilty.) It is not in and of itself a violation of public policy to fire someone for what they do on their own time. The issue of whether an employer can dictate what an employee does on his own time recently made big news when a large company announced that it would terminate any employees that tested positive for tobacco use. In other words, smoke at work, smoke at home, smoke anywhere and you lose your job. The vast majority of water cooler lawyers opined that the courts would shoot this down as a complete infringement of personal privacy and freedom, but they were wrong.
Since an employer can fire you for any reason that does not violate public policy, that includes things you do off duty, including smoking, eating fatty foods or listening to Kenny G (which most people would consider just cause for termination in any event). The only time an employer cannot fire an employee for what he does on his own time is when such a limitation would itself create a violation of public policy. For example, terminating an employee because he voted on his own time is a violation of public policy because that would be an interference with the right to vote. There are also specific statutory protections for what you do on your own time. For instance, if you decide to contact other employees about forming a labor union, that is a protected activity and cannot result in your termination even though the employer may be opposed to formation of a union. However, absent a statute or a public policy, your employer can absolutely fire you for things you do on your own time. If your employer finds it strange that you collect salt and pepper shakers, the axe can fall. In Sharon’s case, there was no protection for the musings in her blog. Posting negative comments about her employer was not deemed to be such a fundamental right that the termination violated public policy.
I know as people, especially attorneys, read these examples, they will recall a case they once read, or a story they were told, wherein people under similar circumstances did successfully sue for wrongful termination. Usually this is because while the cases sound similar, there was a crucial fact in one case that was not present in the other.
For example, I just told you the story of Sharon, and how she could do nothing about being fired for what she wrote in her blog about a supervisor. Nonetheless, I obtained a sizeable settlement for two women that were fired for what they said about a supervisor. The difference was, in the case of these two women the company was trying to evaluate the supervisor, and told the employees that they would not be fired if they said bad things about her. They said bad things about her, so she fired them. There is an equitable principle called promissory estoppel. It basically holds that if you make a promise to someone, knowing they will rely on that representation, you can be held to that promise. I successfully sued the company on the basis that the employees had relied on the “no termination” promise to their detriment, and had to be compensated. Don’t be falsely encouraged by friends and family that are certain someone under the same circumstances recovered a bazillion dollars, unless you can be certain the facts were identical.
Now that you understand at-will employment, you can discuss with your attorney what public policy might have been violated by your termination.
Answer: It depends on what was motivating him to yell at you.
People have heard the term "hostile work environment" but have no idea of the legal context. They believe that hostility in the workplace has somehow become illegal and actionable. I even receive calls from employees who want to sue because they are being asked to work harder, and they feel that is hostile.
Thankfully, we have not yet become a society with "polite police" ready to pounce whenever someone's feelings are hurt. Your boss can call you an idiot with impunity, so long as he's not doing it for a reason that violates public policy. In other words, if he's calling you an idiot because he thinks you are an idiot, that's permitted, no matter how hostile you might find that to be. On the other hand, if he's calling you an idiot because of your race, gender, nationality, etc., that is not permitted.
The concept of a "hostile work environment" first came from cases involving gender discrimination. The classic example is that of a fire station which previously was devoid of women firefighters. A woman finally breaks the gender barrier, but when she reports for work at the station she is greeted by nude centerfolds on the lockers and in the lunch room. Pictures of nude women are not inherently discriminatory against women employees, but it is not hard to imagine that the woman firefighter might feel uncomfortable being surrounded by this objectification of women. The court's struggled with this situation for some time, because the facts did not involve the classic form of discrimination, where the woman suffers some form of adverse job action or failure to promote. The courts then came up with the reasonable idea that even in the absence of any objective discrimination, the very atmosphere of a workplace could be hostile to women and therefore discriminatory. Thus, an older employee who never suffers adverse job action can still claim discrimination if the company permits constant jokes about age, or a minority can sue for discrimination if racist cartoons are posted.
A "hostile work environment" might also be actionable as a contract breach if it violates company policy or goes so far that it amounts to an unsafe working condition. But absent some other basis, generally you cannot sue your boss or company for being rude to you.
For more information, including the actual jury instruction read to jurors in a case based on hostile work environment, see "What Constitutes a Hostile Work Environment or Hostile Workplace?"
Answer: No. However, upon reasonable request, your employer must allow you to examine your personnel file, and if you request it, you must be provided with copies of any documents in your file that were signed by you.
If you are fired and think you may sue for wrongful termination, then it is a very good idea to make an inventory of your personnel file as soon as possible. Call your company and make an appointment to review your file. They must act in a reasonable manner, so while they are not required to drop everything and meet with you that day, certainly the appointment should happen within a few days, not weeks.
Take a pad of paper with you, and prepare a very neatly printed inventory of every piece of paper that is in your file. If your case someday goes to trial, this inventory may well be an exhibit, and you want it to look nice for the jury. Why do you need an inventory? Because, sadly, once you file the action, documentation you have never seen will sometimes magically appear in your file. At trial, you will be able to say, "here is what was in my file a week after I was fired," to demonstrate that items were later added.
For a much more detailed explanation of the right of an employee to review their personnel file, go here.
Answer: Yes, and sometimes that's not a bad idea.
I get this call often. An employee accepts a new position, set to start on, say, October 1st. Being a good employee, the employee gives notice on September 15, and is thanked by immediately being terminated. The employee is thereby deprived of 15 days of income, and screams that can't be fair.
For the 100th time on this page, an employer does not need a reason to fire you if you are an at-will employee. Ethically, if you were nice enough to give notice, the employer should not do this to you, but there is nothing to prevent it. Many employers have been burned, and know that if the employee is allowed to stay for those two weeks, he won't be very productive, he'll use the opportunity to download all the company files, and he will poison the minds of all the other employees, telling them how much better they could do at the new company. Plus, many just view it as disloyal and don't want the employee around.
There are some theories that could work to recover the lost wages. If you have the time and money, you could theoretically sue for, say, breach of contract if the handbook provides for two weeks notice. You'll just need to decide if it makes economic sense.
Giving notice is the right thing to do, but keep your eyes open while you are employed to see how the company responds to employees that quit. If the standard response is to have security escort them from the building, then you may want to give notice on your way out the door on your final day. On the other hand, if you have attended many going away parties given to employees that are leaving, then you are probably safe to give notice.
Answer: It depends on what they are saying and why they are saying it.
Time to clear up another urban legend. Many employees somehow have the idea that if a prospective employer calls a former employer to ask for a reference, the former employer is limited to confirming that the employee worked there, for how long, and what positions he or she held. That is not the law by a long stretch. Quit to the contrary, Civil Code section 47 provides limited immunity under such a circumstance.
So long as your former boss believes what he is saying, and is not acting out of ill will or malice, he can state his honest opinion about your past performance and state whether he thinks you should be hired.
Let's take The Case of the Smoking Employee detailed above, where an employee was fired for smoking marijuana, even though she never did. Let's say that after she was terminated, and while the employer still believed that she had been smoking pot, a prospective employer called to ask for a job reference. We know that whether or not she was smoking pot is irrelevant to any wrongful termination claim, but can her old boss tell the new boss about her drug use? If he truly had no reasonable basis for his belief, then that would constitute ill-will to be reporting something that is unfounded. I would say he loses the privilege afforded by section 47. But what if he once found her sleeping at her desk, and told the new boss she is lazy? That would probably be OK, since he is permitted to form and report his opinion based on something he saw.
Answer: Sign the warning.
It's very upsetting when an employer asks you to sign a write-up, when you know you did not do what it says. But you need to take a deep breath, focus, and read the document. In my experience, 98% of the time the warning will say that you are only signing to confirm that you received the warning. There is nothing wrong with admitting that you received the warning. If it makes you feel better, write "signed under protest" beneath your signature. If you refuse to sign a warning, when it is merely asking you to confirm that your received it, your employer can properly fire you for insubordination.
Let's say you filed a workers compensation claim, and your employer decided to start documenting all your mistakes (and make up a few) in order to get rid of you. By refusing to sign the warning, you just handed the employer a perfect reason to fire you, and possibly threw your wrongful termination claim out the window. The better course is to sign the warning, and then immediately place your own memo in the file, politely explaining why you did not do what the warning says you did.
Answer: Yes, but the employee handbook doesn't say what you think it says.
Fifteen years ago, employee handbooks were the bread and butter of wrongful termination attorneys, because they created a way to get around the at-will employment rule (discussed above). The handbooks were written to keep the employees happy by showing the benevolence of the employer. Typically the handbook would contain a section explaining that before terminating an employee, the company would first issue a verbal warning, then a written warning, then the employee would be placed on an action plan and finally if the errant behavior did not improve, the employee would be suspended for a set number of days. Only after all these steps had been followed could the employee be terminated.
If a terminated employee could show that he or she relied on the employee handbook, that created an implied agreement. Thus, if the employer failed to follow the handbook and, say, terminated an employee without the requisite suspension, the employer was in breach of the implied agreement. The employee could recover all the damages that flowed from the breach.
This "loophole" was easily fixed. If an employee is going to point to the handbook and claim that he relied on it to form a contract, then all the employer needs to do is insert language stating that the handbook is not a contract and should not be relied upon by the employee. I now have a standing bet with all those who call my office, claiming that the employer is required to warn them of misconduct, or follow some other procedure before termination. I tell them I will pay them a dollar if the handbook does not contain language in the first two pages, stating (1) that the handbook is not a contract, (2) that the employer does not need to follow any of the procedures set forth in the handbook, and (3) that the employer can change anything in the handbook at any time without notice to the employee. So far no one has collected the dollar.
Employee handbooks are still the bread and butter of many employment lawyers, but for a different reason. Having been terminated, the employee flips open the handbook and finds the magic words about how the employer is "required" to warn them and give them a chance to fix the problem before termination. When they call and explain this to an attorney, the attorney instructs them to gather all their documentation and bring it in for a review. They then sadly explain that the employee handbook by its terms is not a contract. That will be $500 please.
It is very important that you immediately review the company's handbook AND your personnel file if you are entertaining the idea of pursuing legal action. An attorney is probably best equipped to perform that job, but there are really just four things you need to look for if you decide to do it yourself.
1. Does the handbook specifically state that it is not a contract, and need not be followed by the company? If so, then it probably doesn't matter what else it says.
2. If there is no such language, and you relied on the handbook, then did the company fail to follow the handbook? If so, then you may have a breach of contract action.
3. Does the handbook or personnel file limit the time to bring an action?
4. Does the handbook contain an arbitration provision. If so, then the arbitration service will likely have its own procedures that will need to be followed.
When you go to review your personnel file, be sure to prepare an inventory, as explained more fully above.
Answer: It depends on a number of factors
Few things are black and white under the law. The answer to this question used to be fairly simple. If you are suing for a reason that falls under the Fair Employment and Housing Act (i.e., discrimination for age, gender, race, etc.), then you generally have a year to file your complaint with the Department of Fair Employment and Housing. If you are suing for a garden-variety breach of contract claim, then you could have as long as two to four years, depending on whether the agreement was oral or written.
But as of late, employers have started adding provisions to employment agreements that seek to limit the length of time an employee can bring an action -- usually six months. If such a provision is deemed enforceable, that could limit the time to bring the action. See Limiting the Time for an Employee to Sue for more information.
It has therefore become even more important that you obtain a copy of your personnel file and allow an attorney to review it for such limitations, as well as any arbitration provisions. See the information above and Employee Rights to Personnel File for more information on obtaining your file.
Answer: Your evil boss can't keep you from seeing your daughter dance.
Believe it or not, there is a law for this situation, called the Family-School Partnership Act. Your employer doesn't have to pay you to go (although I'm sure that is next), but if you give the proper notice and if your company is big enough, you can go. In fact, you can take off time to attend school functions up to 40 hours each year. The law has several requirements, so I've set them out in detail on our Family-School Partnership Act page.
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