California employees who do not have a (1) written, (2) oral or (3) implied in fact or law employment contract are typically referred to as “at will” employees. “At will” employees may be discharged or caused to suffer other adverse employment actions, e.g., demotion, suspension, reduction in compensation, etc., for any reason or no reason at all, and no reason need be given. In addition, “at will” employees may suffer termination or other adverse employment action without any prior notice or warning. Nevertheless, there are many exceptions to “at will” treatment.
It is unlawful, for example, to take any adverse action against an employee, including termination, suspension, demotion, reduction in compensation, based on (1) discrimination on account of race, age, race, color, national origin, ancestry, gender, religion, disability, sexual orientation, medical condition or marital status, (2) discrimination or retaliation in violation of the Family Rights Act or the Pregnancy Disability Leave Law or (3) retaliation for engaging in protected activity, e.g., protesting discriminatory conduct or participating in related proceedings. These discrimination and retaliation claims are governed by the California Fair Employment and Housing Act, the Family Rights Act and the Pregnancy Disability Leave Law and may also be raised as so-called common law fundamental public policy claims, sometimes referred to as “Rojo” claims. Such common law claims may arise under the California Constitution and under Fair Employment and Housing Act, the Family Rights Act and the Pregnancy Disability Leave Law.
In addition, an adverse employment action that violates a fundamental public policy embodied in a firmly established state or federal statute, regulation, or constitutional provision will also give rise to a so-called public policy claim. Any employer directive to break the law or followed by an adverse employment decision, or any form of retaliation against an employee who refuses to break the law or who complains of a violation of the law may be countered with a public policy claim. Such claims may be brought, by way of example only, where the employee has suffered an adverse employment action on account of an employee’s complaints about an employer’s failure to (1) comply with wage or compensation laws, (2) maintain a safe workplace, or on account of an employee’s (3) filing of a worker’s compensation claim, (4) decision to serve on a jury, (5) “whistle-blowing,” i.e., reporting unlawful activities to a governmental agency, (6) refusal to sign an unlawful covenant not to compete, (7) refusal to release an employer from liability for intentional acts, (8) testifying at a court hearing, (9) advocating proper medical care for a patient, (10) discussing wages with a co-worker, (11) assertion of equal pay act rights, (12) engaging in political activity outside of work.
The foregoing list is not exhaustive, so always seek competent legal counsel if you suspect that you are suffering adverse employment action on account of a violation of public policy or retaliation for complaining about such suspected violations.
Even a supposed “at will” employee may sue for breach of employment contract when the employer has impliedly, through conduct, course of action, promotions, performance evaluations, longevity of service, etc., promised that termination or other adverse employment actions will only be taken for good, just or sufficient cause. These implied contacts may protect an employee. This may be true even if there is an express “at will” clause, so long as the employee can demonstrate that the “at will” clause is defective, does not contain the required language, is not actually an integrated part of the employment contract , or does not provide that it can only be modified in writing. Again, consultation with a competent counsel is necessary in order to determine if there is an implied contract requiring termination only for good cause.
Finally, special rules apply when the employee has a written contract that does not contain an “at will” clause. In such cases there may be rigorous requirements that the employer demonstrate there was in fact good cause supporting the termination or other adverse employment action.
Quick action is usually required when an employee suspects a wrongful termination or an other unlawful adverse employment action because in most cases the employee must file a complaint within short statutes of limitation. Early action is also advisable in order to preserve evidence that would be critical in proving a claim, e.g., witness statements, depositions, documentary evidence and personnel records.
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