California is an at-will state, meaning that generally, an employer is allowed to fire employees for any reason, or even no reason at all. However, wrongful termination in violation of public policy, shortened to “wrongful termination,” is a court-created exception to this at-will rule, making it unlawful to terminate someone for a reason that is contrary to federal or state law or well-established policy. Courts have found, for example, that it was unlawful for an employer to fire someone for: (1) refusing to lie to an investigator with the state Department of Fair Employment and Housing (DFEH); (2) reporting to management a company’s failure to pay overtime; (3) refusing to deliver spoiled milk out of concern for consumer safety; and (4) complaining about cigarette smoke in the workplace. There are many other examples, but the general rule is that a termination is only wrongful where it goes against a specific law or public policy. On the other hand, general insubordination, coming in late, and breaking most company policies are not generally acts protected by the law. The Law Offices of Kyle Todd fights for employees who are brave enough to speak out or refuse unlawful or unsafe work, as they can be protected by the doctrine of wrongful termination in violation of public policy.
To establish a claim of wrongful termination, the employee must show:That they engaged in conduct protected by a public policy that is beneficial to the public and is embodied in some type of law (e.g., statute, regulation, or constitutional provision);
That, at least in part as a result of engaging in that protected conduct, the employee was subjected to termination or some other adverse employment action.
SOURCES OF PUBLIC POLICY
If a statute or regulation has been passed that can be called beneficial to the public, and the employee’s termination can be argued to go against that public goal, then the employee could have a claim of wrongful termination. Examples of cases where a statute or regulation underlie a claim for wrongful termination include the following:
- An employee complains about violations of federal or state occupational safety and health acts (OSHA and Cal/OSHA), and is terminated as a result;
- An employee is terminated after reporting (to a government agency or the employer itself) what the employee thinks is illegal conduct on the part of their employer. This kind of reporting is protected by California Labor Code section 1102.5;
- A physician is terminated after advocating for medically appropriate health care, as that conduct is protected by California Business & Professions Code section 2056;
- An employee is terminated after reporting to their employer violations of the California Labor Code, such as: (1) payment of overtime or commissions; (2) inability to take lawfully-due meal or rest breaks; or (3) failure to reimburse the employee for necessary job-related expenses.
- An employee is discriminated against for exercising their right to family medical leave under the Family Medical Leave Act (FMLA) and/or California Family Rights Act (CFRA);
- A healthcare professional is terminated for complaining about understaffing or being assigned duties that are outside the bounds of their professional license. For example, California Business & Professions Code section 2725 draws the lines between what functions a nurse – as opposed to a medical doctor – should be performing. Similarly, the Respiratory Care Practice Act delineates the necessary staffing of respiratory care professionals.
Even where no statute explicitly establishes a protected public interest, an employee may be able to prove wrongful termination so long as they can point to a statute that furthers that interest. For example, in Hentzel v. Singer Co. (1982) 138 Cal.App3d 290, the court recognized that while there is no statute calling for smoke-free workplaces, Cal/OSHA (found in the California Labor Code) establishes a “firmly established principle of public policy” of protecting employee health, and therefore the employer had a duty not to terminate its employee for attempting to further that important public goal.
Finally, protections found in the California constitution provide further bases for wrongful termination claims. For example, an employee who is terminated for refusing to take a drug test, in certain circumstances, may have a claim for wrongful termination based on the California constitution’s strict privacy guarantees.