“Reinstatement” as a Remedy for Wrongful Termination in California

When a person is wrongfully terminated in violation of the California Labor Code, a remedy can sometimes include reinstatement. This is the restoration of your position after a wrongful termination. It can be granted as a result of

• a pretrial settlement,
• a preliminary injunction, or
• a final judgment.

California law protects employees when they believe they have been retaliated against or wrongfully terminated from their position at a company. If an employer violates California Labor Codes, each employee possesses important rights that should be enforced.

Below, our California labor and employment law attorneys address frequently asked questions about California Labor Code violations and reinstatement after wrongful termination:

• 1. What is the California Labor Code?
  
  • 1.1 Who enforces the California Labor Code?
  • 1.2 Can I file a private lawsuit to enforce the California Labor Code?
• 2. What is reinstatement?
  
  • 2.1 What counts as reinstatement as a remedy?
  • 2.2 What if my old position no longer exists or has changed?
  • 2.3 How do I know if the “new” position is the same or substantially similar?
  • 2.4 What if the position is not the same or substantially similar?
• 3. When is reinstatement required by law?
  
  • 3.1 What is the Family and Medical Leave Act?
  • 3.2 What is the California Family Rights Act?
  • 3.3 What is S.B. 306?
• 4. Can reinstatement be part of a negotiated settlement?

1. What is the California Labor Code?

The California Labor Code is a set of laws and regulations designed by the California legislature to protect the rights of the state’s employees.¹ It addresses issues like but not limited to:

• Wage theft
• Immigration retaliation
• Failure to pay earned overtime
• Harassment claims
• Late payments
• Whistleblower retaliation
• Violation of sick and family leave laws, or
• Punishment for jury duty service.

1.1 Who enforces the California Labor Code?

The code is enforced by the State Department of Industrial Relations through the Labor Commissioner’s Office.

Violations can be reported to the Commissioner’s Office through a complaint procedure. There are different kinds of complaints, depending on the nature of the violation.²

1.2 Can I file a private lawsuit to enforce the California Labor Code?

You can file a lawsuit to enforce the California Labor Code. With the help of an experienced employment attorney at Shouse Law Group, you can file a private action. Filing privately against your employer allows you to

• control the course of the case
• rather than leaving it to the government.

Though the State of California wants to protect your rights, they take on these cases all the time and may lack the personal perseverance and real desire to obtain results that best favor you.

Filing privately allows you to be proactive and strategic about how you proceed with the lawsuit rather than be a passive spectator.

2. What is reinstatement?

Reinstatement refers to a legal remedy in which an employee who has been wrongfully terminated from employment is placed back into his or her previous position.

This protects the employee’s rights after they have been violated, ensuring that the employee is able to work and earn a living. Of course, this assumes that the employee wants to be reinstated to his or her place of former employment.

2.1 What counts as reinstatement as a remedy?

The most common form of reinstatement is when the terminated employee is returned to his or her former position. This includes placement back into the same exact job with the same:

• Title
• Hierarchy in the leadership structure
• Compensation
• Benefits
• Insurance
• Perks, and
• Any other benefits of the prior position.

If reinstatement is a result of a preliminary injunction, your case is still ongoing. You have the right to pursue reinstatement along with payment of other compensatory damages.

2.2 What if my old position no longer exists or has changed?

In some cases, reinstatement in the exact same position is impossible because, for example, it

• No longer exists
• Was filled by another person, or
• Has changed either in duties or benefits.

When this is the case, the attorney who represents the victim of the wrongful termination, along with the Labor Commissioner’s Office, will first consider the circumstances of the changes.

If those changes were made as an attempt to wrongfully deter or prevent reinstatement as a remedy, the employer could face severe consequences. If the circumstances occurred in good faith, meaning no “funny business” or trickery has taken place, you can be reinstated in another capacity.

2.3 How do I know if the “new” position is the same or substantially similar?

Reinstatement as a remedy can be satisfied by placing the wrongfully terminated employee in a position that:

• Has at least the same or higher compensation, hourly or salary, as the old position
• Has the same or substantially similar benefits with no requirement to “qualify” for previously held benefits
• Is generally of the same or substantially similar duties, requirements, and qualifications
• Does not place the employee on a lower part of the hierarchy of a business, for example, the new position should not be akin to a demotion
• Is not overly burdensome, especially in terms of new duties or education requirements, unless the employee agrees, and
• Is one the employee is able to perform with his or her unique capabilities, for example, disabilities.

2.4 What if the position is not the same or substantially similar?

If the employer offers a position that is not the same or substantially similar, it can be a violation of California and — in some cases — federal law.³ If the position involves any unacceptable changes — like a demotion or less pay — you can deny the offer.

In some cases, the new position may offer better benefits in exchange for additional education and training.

Example: Tiffany is a financial adviser and was fired from her job at a bank because she reported violations of California Labor Laws by her employer. After reporting the termination and filing her lawsuit, the bank offers her a new position because her old one has already been filled. The position comes with a pay raise and a promotion but would require Tiffany to undergo significant new training (which the bank will pay for). The position may not be substantially similar, but the perks may be worth it for Tiffany.

Understanding when a position is the same or substantially similar can be difficult, but the attorneys at the Shouse Law Group can guide you through that process so you can confidently make informed decisions about “new” jobs.

3. When is reinstatement required by law?

Reinstatement to your former position may be required by law in certain circumstances. The following are examples of mandatory reinstatement in California.

3.1 What is the Family and Medical Leave Act?

The Family and Medical Leave Act (FMLA) grants certain types of employees up to 12 weeks of unpaid, job-protected leave per year. It further requires that group health benefits be protected and maintained during that time period.

FMLA applies to all

• public agencies,
• public schools, and
• companies with 50 or more employees. ⁴

In many cases, employers violate employees’ rights protected by FMLA. When an employee is terminated because of leave and that leave should have been protected, the Act grants reinstatement as a remedy with only limited exceptions.

3.2 What is the California Family Rights Act?

The California Family Rights Act is very similar to FMLA but adds further protections for California employees. Under the Act, certain types of leave are permitted, like leave for

• childbirth,
• adoption,
• foster care setup,
• family illness, or
• employee illness.

The leave is unpaid, but the employee’s job is protected while on leave. Violations of these rights through wrongful termination can be remedied with placement back into the prior position.⁵

3.3 What is S.B. 306?

A new law took effect on January 1, 2018, which greatly changed certain aspects of retaliation claims in California. Among those changes is the ability of the Labor Commissioner or an employee whose rights were violated to obtain an order from a court to allow the employee to work while the lawsuit is still pending.⁶

This can occur even before a final determination has been made as to whether the termination was wrongful, so long as the employee can show that:

reasonable cause exists to believe that an employee has been discharged or subjected to adverse action for raising a claim of retaliation or asserting rights under any law under the jurisdiction of the labor commissioner.

4. Can reinstatement be part of a negotiated settlement?

In some cases, even when the law does not require it, reinstatement to a prior position can be obtained through a negotiated settlement.

Settlements occur before a final determination has been made by a court or jury at trial. They are contractual agreements between the parties to a lawsuit.

If the two parties can agree, a wrongfully terminated employee can be reinstated to

• his or her old position or
• possibly a new position,

if the employee agrees.

These decisions are up to the employee to accept or reject. Settlement negotiations allow for

• flexibility in the process, as well as
• opening up possibilities that may not exist strictly under the law.

For questions about California’s laws concerning employment reinstatement or to confidentially discuss your case with one of our skilled California employment attorneys, do not hesitate to contact us at the Shouse Law Group.

We have local 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.

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