In California, a wrongful termination lawsuit is a legal action in which a worker claims he or she was fired or laid off for an illegal reason. This generally means a violation of federal or state law, or public policy. The most common claims are that the firing amounted to
- wrongful termination in violation of an implied contract,
- termination for whistleblower activities,
- wrongful termination against public policy,
- termination for exercising rights under the Fair Employment and Housing Act or for protected political activities,
- termination for filing a workers compensation claim or reporting a work injury,
- WARN Act violations (in cases involving mass layoffs), and
- termination for exercising rights under California employee leave laws such as the Family and Medical Leave Act (FMLA).
The damages a worker may recover for a wrongful discharge lawsuit in California depend on the type of suit. But generally, they will include one or more of the following categories of wrongful termination damages:
- Lost wages and benefits;
- Back pay and wages;
- Compensation for emotional distress / pain and suffering arising from the loss of your job;
- Attorney’s fees; and/or
- Punitive damages designed to punish willful wrongdoing by the employer.
Below, our California labor and employment lawyers answer the following frequently asked questions:
- 1. What are the grounds for a wrongful termination lawsuit in California?
- 2. How do I file a wrongful termination claim in California?
- 3. How do you prove wrongful termination?
- 4. How long do I have to file a wrongful discharge suit in California?
- 5. What damages can I recover?
1. What are the grounds for a wrongful termination lawsuit in California?
The most common bases for lawsuits under California wrongful termination laws are:
- Exceptions to “at-will” employment
- Whistleblower protection
- Wrongful discharge under the Fair Employment and Housing Act
- Wrongful constructive termination
- Political activities
- WARN Act wrongful termination
- Taking leave
- Wage and hour complaints
1.1. Exceptions to “at-will” employment
We often get asked the question: Can you be fired for no reason in California? The answer is yes, you can. But sometimes getting fired for the wrong reasons can amount to wrongful termination.
As a baseline rule, most employment relationships in California are “at will.” At will employees can be dismissed at any time, for any reason. In short, they do not have to be fired “for cause.”1
But California labor law has carved out a number of exceptions to the general rule of employment at will. These include:
- An “implied contract” not to terminate employment without good cause;2
- A breach by the employer of an implied covenant of good faith and fair dealing (such as deliberate lies, interference, evasiveness, inaction, non-communication, or obstruction);3
- Wrongful termination in violation of public policy. For example, terminating an employee because s/he refused to help an employer violate the law, or performed a legal duty;4 and
For most fired employees, the most helpful of these exceptions to at-will employment are the implied contract and public policy theories of wrongful discharge.
1.1.1. Implied contract
An “implied contract” is an agreement that is understood by both parties, even if they have not signed a written contract memorializing this.
An employer may create an implied contract not to terminate an employee without good cause by:
- issuing an employee handbook listing specific reasons why employees may be fired, and/or
- telling an employee in person that his/her job is safe as long as s/he does not do certain things.
1.1.2. Public policy
Wrongful termination in violation of public policy typically happens when an employee is fired for refusing to follow an employer’s order to break the law. For example, if an employee is fired for refusing to help an employer violate criminal fraud laws, s/he will have a valid case for public policy wrongful termination.
1.2. Whistleblower protection
One common form of wrongful termination in violation of public policy is so-called “whistleblower” retaliation. Whistleblower termination occurs when an employer fires an employee for reporting a potential violation of law by the employer to a government agency or law enforcement agency.
California’s main whistleblower protection law is Labor Code 1102.5 LC. This law provides that employers may not retaliate against any employee who reports a suspected violation of law by the employer to:
- a government or law enforcement agency, or
- a supervisor or other employee who has the authority to investigate or correct the violation.6
1.2.1. Sarbanes-Oxley Act and Qui Tam
Other statutes provide more specific forms of whistleblower protection.
The Sarbanes-Oxley Act of 2002 is a federal law designed to protect investors from fraudulent accounting by public companies. It gives employees of publicly-traded companies the right to sue for wrongful termination if their employer fires them for reporting suspected securities fraud to the federal government or a supervisor.7
Another important whistleblower law is the “qui tam” section of the California False Claims Act. California’s qui tam law allows an employee to sue their employer on behalf of the state government. This applies if the employer has committed fraud or embezzlement with respect to government funds.
If an employer then terminates or otherwise retaliates against an employee for bringing a qui tam suit, the employee has the right to sue for wrongful discharge/qui tam retaliation.8
1.3. Wrongful discharge under the Fair Employment and Housing Act
California’s Fair Employment and Housing Act--the main state law prohibiting workplace harassment and employment discrimination--makes it illegal for employers to retaliate against employees who:
- Oppose harassment or discrimination,
- File a complaint about harassment (including sexual harassment) or discrimination, or
- Testify or assist in any investigation or lawsuit over harassment or discrimination.
Employers may not fire workers based on their being part of a protected class, including:
- National origin,
- Age (if over 40),
- Genetic information,
- Marital status,
- Sexual orientation,
- Gender identity (including transgender or non-binary),
- AIDS/HIV positive status,
- Medical condition,
- Political activities or affiliations,
- Military or veteran status,
- Victims of domestic violence, assault or stalking, and
- Citizenship status.
Note that cities may have additional protected classes. Height and weight are protected classes in San Francisco, for instance.
Also note that employers may not fire new moms for pumping breast milk at work or asking for a lactation accommodation.
Finally note that employers may not fire employees for any lawful conduct they engage in during their off hours and away from the office.9
1.4. Wrongful constructive termination
Under California “wrongful constructive termination” / “constructive discharge” laws, employees can sue their employers for wrongful termination even if they are not actually fired. Constructive termination occurs when an employer makes working conditions so intolerable that an employee has no choice but to quit.10
An employee can sue for wrongful constructive termination if:
- The employer intentionally created – or knowingly permitted – working conditions that were so intolerable that a reasonable employer would expect a reasonable employee to resign because of them; and
- The employer would not have been within his/her rights to terminate the employee outright (due to an implied oral contract or because termination would have been against public policy).11
Note that California workplace retaliation laws also prohibit employers from retaliating against employees in ways other than termination or constructive termination.
1.5. Political activities
California employees are sometimes able to sue their employers for wrongful termination if they lose their job due to protected political activities or speech.
The First Amendment to the U.S. Constitution does not apply to terminations by private employers.12 But California labor law also provides that employers cannot control or direct their employees’ political activities or speech. Thus, an employee who is fired for political activity has the right to sue for wrongful discharge.
California employees also have grounds for a wrongful termination lawsuit if they are fired for joining a labor union or participating in union activities.12
1.6. WARN Act
Another variation on wrongful termination is the failure of an employer to comply with California’s Worker Retraining and Notification (WARN) Act.
California’s WARN Act requires employers to provide employees with sixty (60) days’ notice before conducting a mass layoff of fifty (50) or more employees, or before closing or relocating a facility. It applies to all employers with at least seventy-five (75) employees.
If the employer fails to provide 60-days’ notice, employees may sue for wages and benefits for the amount of time by which the notice fell short of 60 days.13
1.7. Taking leave
It is wrongful termination for employers to fire covered employees for asking about or taking family medical leave that they are legally entitled to. Wrongful termination is presumed if an employer fires a worker:
- within 30 days after the workers request to use paid sick leave; or
- within 90 days of returning from FMLA leave
Then the employer would have the burden to demonstrate that the firing had to do with something other than leave-taking.
Note that employers also may not fire workers for serving on a jury. Nor may employers fire workers who take time off work if they have been a victim of specific crimes and seek help.14
1.8. Wage and hour complaints
It is wrongful termination for employers to fire employees who complain about – or file a claim with the Department of Industrial Relations regarding – wage and hour violations. Examples include complaints about unpaid overtime pay and rest or meal breaks.15
2. How do I file a wrongful termination claim in California?
If you lose your job and think you may have a wrongful termination claim against your former employer, we recommend that you take the following two steps immediately:
- Contact an experienced California wrongful termination lawyer to discuss creating an attorney-client relationship; and
- Gather and preserve all available evidence related to your case.
Gathering evidence, of course, consists of obtaining and preserving all written documents your employer has given you related to your termination and your job performance prior to termination (for example, your termination letter and copies of all past performance reviews).
You may need to request some of these documents from your employer if you have not saved them yourself. (If your employer does not respond to these requests, an attorney can help you make them more forcefully.)
A California employment attorney can play an important role in the gathering of evidence for a lawsuit. S/he can help you determine what evidence will be important as the case proceeds.
3. How do you prove wrongful termination?
Typical evidence that can help demonstrate that you were fired illegally include:
- Recorded communications such as emails or voicemails from managers that show harassing or prejudiced behavior. Other materials that could work include handwritten notes, memos, or social media posts.
- Eyewitness accounts from fellow co-workers who can back up your side of the story. An example would be a colleague who saw the boss harass you.
- Company employment data that shows the company is systemically prejudiced. For example, a lack of people of color in management positions indicates that the hiring partners may be discriminating in favor of white employees.
Oral conversations may also be important evidence in a wrongful discharge lawsuit. Conversations about your termination itself, conversations about your job performance, and any conversation that led you to form certain expectations about your job security are all potentially relevant under California law.
Therefore, it is important to write down and store in a secure place your recollections of all conversations with supervisors or other employees that may be relevant to your termination. These written records should note that the date, place and all participants for all of these conversations.
Note that some employers have a “mixed-motivation” ground for termination: The employer has both a nondiscriminatory reason and discriminatory reason to fire the employee. If the discriminatory reason was a substantial reason for the firing, then the firing qualifies as wrongful termination.
4. How long do I have to file a wrongful discharge suit in California?
For most claims in California, you need to file a lawsuit within the “statute of limitations” time period set forth by California law.
The statute of limitations for a wrongful termination lawsuit depends on what kind of claim you are bringing. The following table sets out the different deadlines under California law:
|Type of Wrongful Termination Lawsuit||Statute of Limitations|
|Implied oral contract (breach of contract)||Two (2) years16|
|Public policy||Two (2) years17|
|Whistleblower under Labor Code 1102.5||Three (3) years18|
|Whistleblower under Sarbanes-Oxley Act||180 days (to file complaint with US Department of Labor)19|
|Fair Employment and Housing Act||Three (3) years (to file complaint with California Dep’t of Fair Employment and Housing)20|
|WARN Act||Three (3) years21|
With all of the cases listed above, the clock begins running on the date you are terminated or otherwise retaliated against. Once filed, wrongful termination cases can take anywhere from several weeks to several years to resolve.
(People who choose to file a federal discrimination lawsuit usually have 180 days after the termination to file a claim with the EEOC. The claimant will then receive a notice of right to sue. At that point, the claimant has 90 days to sue.)
5. What damages can I recover?
There are several types of damages that are typically awarded to plaintiffs under California wrongful termination law. These are:
- Lost wages and benefits plus interest. These compensatory damages are the back pay that you could reasonably have expected to earn had you not been wrongfully terminated, plus the value of any employee benefits. Such benefits include healthcare benefits, unused vacation, etc.22 This amount of unpaid wages will be reduced (“mitigated”), however, by the amount of wages and benefits that you actually earned, or could have earned, from substantially similar employment.23
- Job reinstatement. Plus, you would need to be granted the same level of seniority you had at the time of the unlawful discharge. Though in reality, most people do not want their job back following a contentious legal proceeding.
- Loss of future wages/front pay. The court calculates this by starting on the day of the verdict up until the projected end date of the job.
- Emotional distress/pain and suffering.24 This can include compensation for physical pain, mental suffering, loss of enjoyment of life, grief, anxiety, loss of professional reputation, or humiliation arising from the traumatic experience of losing the job unfairly.25
- Attorney’s fees and litigation costs. In some cases, successful plaintiffs can collect attorney’s fees from the employer-defendant. This is only possible for a few types of wrongful termination cases, such as under the Fair Employment and Housing Act and Sarbanes-Oxley.26
- Punitive damages. These are designed to punish the employer for its behavior and do not need to be related to any economic or non-economic loss you suffered. Punitive damages are only awarded in cases where the employer is found to be guilty of oppression, fraud or malice. They are more common in discrimination cases. And when they are awarded, punitive damages are often much higher than compensatory damages (which are about making the plaintiff “whole”).27
- Declaratory and injunctive relief.
What kind of damages you may sue for depends on the basis for your illegal discharge lawsuit. The average settlement differs by the type of case. For example, the compensation for wrongful discharge in violation of an implied contract is usually only lost wages and benefits. But unlawful discharge in violation of public policy can yield emotional distress damages as well.28
Out-of-court settlements may be less than what a jury would return should the case go to trial. But plaintiffs typically opt for settlements because they are quicker and easier. (Note that any attorneys’ fees and court costs come out of the settlement amount.)
Call us for help…
Have you been fired or let go for an unlawful reason? Our employment law attorneys have local employment law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities. Disclaimer: Results cannot be guaranteed.
Work in Nevada? See our article on Nevada wrongful termination laws.
- Title VII of the Federal Civil Rights Act of 1964
- California Fair Employment and Housing Act (FEHA)
- Age and Discrimination Act (ADEA)
- Equal Pay Act
- Americans with Disabilities Act (ADA)
- California Family Rights Act (CFRA)
- Healthy Workplaces, Healthy Family Act
- California Department of Fair Employment and Housing (DFEH)
- Equal Employment Opportunity Commission (EEOC)
- Labor Code 2922 — Termination at will upon notice; employment for a specified term. (“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 one month.”). Under the the ABC test, a worker is an independent contractor – and not an employee – if 1) The worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact; 2) The worker performs work that is outside the usual course of the hiring entity’s business; and 3) The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed. (Assembly Bill 5 (2019)). Note that California employees are presumed to be at-will unless the job was for a specified time, the parties’ conduct implies that they knew termination must be for cause, or that the parties agreed that what grounds would justify termination (such as in an employee handbook). Note that independent contractors cannot sue for wrongful termination. California Labor Code 3353 defines independent contractors as “any person who renders service for a specified recompense for a specified result, under the control of his principal as to the result of his work only and not as to the means by which such result is accomplished.”
- See Foley v. Interactive Data Corp. (California Supreme Court, 1988) 47 Cal.3d 654.
- See, e.g., Labor Code 1102.5 LC — Employer or person acting on behalf of employer; prohibition of disclosure of information by employee to government or law enforcement agency; suspected violation or noncompliance to federal or state law; retaliation; civil penalties. (“(c) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.”)
- See Lazar v. Superior Court (1996) 12 Cal. 4th 631.
- Labor Code 1102.5 LC — Employer or person acting on behalf of employer; prohibition of disclosure of information by employee to government or law enforcement agency; suspected violation or noncompliance to federal or state law; retaliation; civil penalties. See also Bonni v. St. Joseph Health System (2021) 11 Cal. 5th 995 and Wilson v. Cable News Network, Inc. (2019) 7 Cal. 5th 871.
- 18 United States Code (“U.S.C.”) 1514A — Sarbanes-Oxley whistleblower protections.
- Government Code 12652 – 12653 GC — California qui tam law.
- Government Code 12940 GC — FEHA-protected activities. Discrimination is unlawful based on various characteristics / protected classes, some of which include national origin, sexual orientation, medical condition, gender identity, genetic information, marital status, and veteran status. See, e.g., Bonni v. St. Joseph Health System, (2021) Cal. LEXIS 5261. Note that there is an affirmative duty for employers to make their workplace sexual harassment-free. Article 33 of the San Francisco Police Code. California Labor Code 96 & 1030-1033. People in California can choose between filing an employment discrimination claim with DFEH or filing a lawsuit in state court. But to file a lawsuit, the person must first file a complaint with the DFEH to get a right-to-sue notice. At that point, the person has one year from the right-to-sue notice to sue. And the DFEH will not investigate the complaint or file it with the EEOC. Note that under federal law, protected classes include only: race, color, religion, sex (including sexual orientation, pregnancy, or gender identity), national origin, age (40 or older), disability and genetic information (including family medical history).
- See, e.g., Brady v. Elixir Industries (1987) 196 C.A.3d 1299.
- Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1251-52.
- See Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 77. Labor Code 1101 – 1102 LC [employees’ right to free political speech]; Ali v. L.A. Focus Publication (2003) 112 Cal.App.4th 1477. Labor Code 923 LC — Right to join union; Escamilla v. Marshburn Brothers (1975) 48 Cal.App.3d 472.
- Labor Code 1400 – 1402 LC [California WARN Act].
- California Labor Code 246.5. California Family Rights Act. FMLA. California Labor Code 230 & 230.5. Note that CRFA mandates that employers with 50 or more employees provide covered employees with up to 12 weeks of leave in a 12-month period for: a child’s birth or placement through adoption or foster care, for the serious health condition of the employee’s spouse, child, or parent, and for the employee’s own serious health issues. And under the Healthy Workplaces, Healthy Family Act, covered employees can take paid sick leave for 1) Diagnosing, caring or treating the employee or his/her family member’s existing health condition or for preventative care; or 2) Seeking help or services if the employee was a victim of domestic violence, rape or stalking. Covered employees can accrue and use up to 24 hours (three days) of paid sick leave each year. But total accrual from carryover unused time cannot exceed 48 hours (six days) per year.
- California Labor Code §98.6.
- Code of Civil Procedure 339 CCP — Two years; oral contract; certificate, abstract or guaranty of title; title insurance policy; sheriff; coroner; rescission of oral contract. (“Within two years: 1. An action upon a contract, obligation or liability not founded upon an instrument of writing [such as an implied oral contract under employment law], except as provided in Section 2725 of the Commercial Code or subdivision 2 of Section 337 of this code; . . . .”)
- Code of Civil Procedure 335.1 CCP — Two years; actions for assault, battery, or injury to, or for death of, individual caused by wrongful act or neglect. (“Within two years: An action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another.”) See also Prue v. Brady Company/San Diego, Inc. (2015) 242 Cal.App.4th 1367, 1382. (“Contrary to Brady’s assertion and the trial court’s conclusion, Prue’s common law tort cause of action for unlawful discharge in violation of public policy is not barred by FEHA’s one-year statute of limitations. Instead, Code of Civil Procedure section 335.1 applies, providing a two-year statute of limitations for tort actions based on injuries to plaintiffs caused by the wrongful act or neglect of others. Effective January 1, 2003, Code of Civil Procedure section 335.1 replaced Code of Civil Procedure former section 340, which provided a one-year statute of limitations for personal injury actions. (Stats. 2002, ch. 448, § 1.)”)
- Minor v. Fedex Office & Print Services, Inc. (N.D. Cal. 2016) 182 F.Supp.3d 966, 988. (“California’s statute of limitations for “[a]n action upon a liability created by statute, other than a penalty or forfeiture” is three years. See Cal. Civ. Proc. Code § 338(a). Therefore, actions commenced under § 1102.5 [whistleblower termination law] must be brought within three years.”)
- 18 U.S.C. 1514A — Sarbanes-Oxley whistleblower protections. (“(b) Enforcement Action. (1) In general.—A person who alleges discharge or other discrimination by any person in violation of subsection (a) may seek relief under subsection (c), by— (A) filing a complaint with the Secretary of Labor. (D) Statute of limitations.— An action under paragraph (1) shall be commenced not later than 180 days after the date on which the violation occurs, or after the date on which the employee became aware of the violation.”)
- Government Code 12960 GC — Procedure for prevention and elimination of unlawful employment practices; application of article; complaints; limitations. (“(d) No complaint may be filed after the expiration of three years from the date upon which the alleged unlawful practice or refusal to cooperate occurred . . .”); California Assembly Bill 9 (2019).
- Code of Civil Procedure 338(a) CCP — Three years. (“Within three years: (a) An action upon a liability created by statute, other than a penalty or forfeiture.”)
- See Judicial Council of California Civil Jury Instructions (“CACI”) 2406 — Breach of Employment Contract —Unspecified Term—Damages. (“If you find that [name of defendant] [discharged/demoted] [name of plaintiff] in breach of an employment contract, then you must decide the amount of damages, if any, that [name of plaintiff] has proved [he/she] is entitled to recover. To make that decision, you must: 1. Decide the amount that [name of plaintiff] would have earned from [name of defendant] up to today, including any benefits and pay increases; [and] 2. Add the present cash value of any future wages and benefits that [he/she] would have earned after today for the length of time the employment with [name of defendant] was reasonably certain to continue; [and] 3. [Describe any other contract damages that were allegedly caused by defendant’s conduct.]”)
- See CACI 2407 — Affirmative Defense—Employee’s Duty to Mitigate Damages. (“[Name of defendant] claims that if [name of plaintiff] is entitled to any damages, they should be reduced by the amount that [he/she] could have earned from other employment. To succeed, [name of defendant] must prove all of the following:1. That employment substantially similar to [name of plaintiff]’s former job was available to [him/her]; 2. That [name of plaintiff] failed to make reasonable efforts to seek [and retain] this employment; and 3. The amount that [name of plaintiff] could have earned from this employment.”)
- See CACI 2433 — Wrongful Discharge in Violation of Public Policy—Damages. (“If you ﬁnd that [name of defendant] [discharged/constructively discharged] [name of plaintiff] in violation of public policy, then you must decide the amount of damages that [name of plaintiff] has proven [he/she] is entitled to recover, if any. To make that decision, you must: 1. Decide the amount that [name of plaintiff] would have earned up to today, including any beneﬁts and pay increases; [and] 2. Add the present cash value of any future wages and beneﬁts that [he/she] would have earned for the length of time the employment with [name of defendant] was reasonably certain to continue; [and] 3. [Add damages for [describe any other damages that were allegedly caused by defendant’s conduct, e.g., “emotional distress”] if you ﬁnd that [name of defendant]’s conduct was a substantial factor in causing that harm.]”)
- See CACI 3905A — Physical Pain, Mental Suffering, and Emotional Distress (Noneconomic Damage). (“[Insert number, e.g., “1.”] [Past] [and] [future] [physical pain/mental suffering/loss of enjoyment of life/disfigurement/physical impairment/ inconvenience/grief/anxiety/humiliation/emotional distress/[insert other damages]].”)
- Government Code 12965(b); 18 U.S.C. 1514A(c)(2)(C) — Sarbanes-Oxley whistleblower protections.
- Civil Code 3294 — Exemplary damages; when allowable; definitions. (“(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”)
- See endnotes 22 and 24 above.