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To prove a case of wrongful termination, the fired worker generally has to show that the employer’s stated reason for the discharge was false, and that the termination was for an illegal reason. That illegal reason is motivated by
- unlawful retaliation,
- discrimination,
- a breach of contract, or
- a violation of public policy.
What is wrongful termination?
Wrongful termination is a discharge of a worker for an illegal reason. Even at-will employees are protected by state and federal wrongful termination laws. However, it is up the former employee to show that their discharge was wrongful. The employer will frequently claim that the termination was for a lawful reason, such as:
- poor performance,
- workplace misconduct, or
- absenteeism.
Employers will hardly ever admit to firing someone for an illegal reason. It often takes the help of an experienced employment lawyer to find the evidence that shows it was a wrongful termination.
What different kinds of wrongful termination cases are there?
Most workers are at-will employees. While they have fewer employee rights or legal protections under state or federal laws, there are still several examples of wrongful termination situations involving workers in at-will employment. These include:
- violations of public policy, like retaliating against a worker for exercising a legal right or for whistleblowing,
- fraud or misrepresentation,
- violating an implied covenant of good faith and fair dealing, and
- violating an implied contract for continued employment.
The elements of proving a wrongful termination case will depend on the type of termination it was. For example, different kinds of evidence are needed to prove a wrongful termination based on fraud or misrepresentation than for whistleblower retaliation.
However, some elements of the different claims are similar to one another. In nearly all cases, the fired worker will have to show that the employer’s stated reason for the termination is false. This can require the help of a skilled employment attorney.
Do I have to overcome my employer’s reason for firing me?
In nearly all wrongful termination cases, the worker has to first show that the employer’s proffered reason for the discharge is false. When employers illegally terminate someone, they almost always claim that the discharge was for a legitimate reason. They almost never admit that the termination was unlawful.
Workers can challenge the employer’s story by presenting evidence that refutes it. For example, this can involve:
- using client recommendations and past performance reviews to overcome a claim that the worker was fired for poor performance,
- proof of punctuality from the worker’s personnel file, if they have been fired for being absent,
- if the worker was fired for alleged sexual harassment involving a coworker, a statement from that coworker that says that no harassment occurred, or
- evidence that the employer did not follow company policies in the employee handbook for an investigation that led to the worker’s termination.
Proving that the termination was done under false pretenses can undermine the employer’s credibility. It shows that the specific reasons given for the discharge do not work and were likely made up. This suggests that the real reason for the termination was unlawful. Otherwise, there would have been little reason to make up a reason for the discharge.
However, workers still have to show that the real reason for their termination violated the law. This can often take the legal advice of a wrongful termination attorney from a reputable law firm.
What evidence can be used to show that the termination was unlawful?
It is up to the worker to show that the termination was unlawful.1 The evidence needed to do this will depend on the nature of the claim: Claims of retaliation for blowing the whistle on illegal activity will require different evidence than a claim of a breach of contract.
However, some common pieces of evidence that can advance a wrongful termination claim include:
- statements made by supervisors,
- emails about particular workers,
- whether supervisors knew that the worker was engaging in legally protected activity, and
- a history of letting workers go after they do similar things.
A strong piece of evidence is the temporal proximity between the protected activity and the termination. If only a few days have passed since the worker exercised one of their rights and their discharge, it is a strong sign that the termination was a wrongful one.
For example: On January 1, 2020, Clark gets hurt on the job. He exercises his rights and files for workers’ compensation that day. On January 3, 2020, he gets fired. The employer claims that he was fired for being late.
What is the law in California?
Under California’s employment law, proving a wrongful termination claim depends on whether the termination was unlawful because it:
- breached the employment contract,
- breached the implied covenant of good faith and fair dealing, or
- violated a public policy.
Regardless of the type of wrongful termination lawsuit the worker intends to file, it is essential to establish an attorney-client relationship with an experienced wrongful termination lawyer to best decide how to proceed.
Breach of the employment contract
To prove a wrongful termination claim based on a breach of contract under California state law, it matters whether the contract was for a specified or an unspecified term.
If the contract said how long employment would last, the worker has to show that:
- the worker and employer had an employment contract that specified how long the worker would be employed,
- the worker substantially performed his or her job duties, or was excused or prevented from doing so,
- the employer breached the contract with an adverse employment action, and
- the worker was harmed by it.2
If the employment contract was for an unspecified term, the fired worker has to show that:
- the worker and the employer were in an employment relationship,
- the employer promised, by words or conduct, to only discharge the worker in certain circumstances,
- the worker substantially performed his or her job duties, or was excused or prevented from doing so,
- the employer discharged the worker in circumstances other than what the contract allowed,
- the worker was harmed, and
- the employer’s breach of contract was a substantial factor in causing that harm.3
These elements apply to both oral and written contracts of employment.
Breach of implied covenant of good faith and fair dealing
The implied covenant of good faith and fair dealing is that both sides in a contract, including an employment contract, will not interfere with the other side’s ability to benefit from the agreement. In general, this means that neither side can mislead or take unfair advantage of the other.4
To prove a wrongful termination claim based on a violation of good faith and fair dealing, workers have to show that:
- the worker and the employer were in an employment relationship,
- the worker substantially performed his or her job duties, or they were prevented or excused from doing so,
- all of the conditions required for the employer’s performance under the employment contract were satisfied,
- the employer prevented the worker from benefitting under the contract,
- by doing so, the employer was acting in bad faith, and
- the worker was harmed by the employer’s conduct.5
Violation of public policy
It is also a wrongful termination to fire someone in violation of public policy. Terminations that violate public policy happen when, for example, the employer fires a worker for:
- refusing to break the law,
- exercising a legal right or privilege, like filing a workers’ compensation claim, taking medical leave, or making a claim of a hostile work environment to a supervisor,
- reporting a potential legal violation in the workplace, like pregnancy discrimination or age discrimination, or
- performing a legal obligation.6
To prove a wrongful termination case for a violation of a public policy, workers have to show that:
- the worker was employed by the employer,
- the employer discharged the worker,
- the violation of public policy was a substantial motivating reason for the worker’s discharge,
- the worker was harmed, and
- the discharge was a substantial factor in causing that harm.7
Legal References:
- Pugh v. See’s Candies, Inc., 116 Cal.App.3d 311 (1981).
- California Civil Jury Instructions (CACI) No. 2420.
- CACI No. 2401.
- CACI No. 2423.
- Same.
- Turner v. Anheuser-Busch, Inc., 7 Cal.4th 1238 (1994).
- CACI No. 2430.