Recent Blog Posts

Could Your Reporting Have Caused Your Termination?

Attorney Karl Gerber — Tue, 10 May 2011 04:30:00 GMT

Both direct and circumstantial evidence may be used to prove causation. CACI 2430 only requires that the violation of public policy was a "motivating factor." An employer is liable for wrongful termination even if the termination was only partially motivated by an illegal reason. If Masey had both poor performance and it is possible that the decision to terminate was made because he complained about prohibited conduct, to decide whether the termination was one, the other, or a combination of both would be to weigh evidence.

Case law does not establish any hard and fast rules about how long can transpire between the protected activity and the adverse employment action. Obviously this is a fact based question. There could be a case in which a very angry manager admitted to somebody else that they were getting an employee back for protected activity occurring 18 months earlier, and the court would not be able to dismiss the case as a matter of law, due to timing, with evidence like that. California cases have allowed retaliation claims to go forward, based upon timing, when far longer periods of time have elapsed between the protected activity and the adverse employment action than is present in this case.

In Colarossi, during May of 1997 Plaintiff participated in a sexual harassment investigation, Colarossi, 1147, 133. Plaintiff was fired in February of 1998. The court held that based upon the totality of the evidence a reasonable trier of fact could conclude there was a retaliatory motivation and reversed summary judgment.

Akers v. County of San Diego, involved an October of 1996 letter written by counsel complaining of gender and pregnancy discrimination to support retaliation occurring up until February of 1999.

Iwekaogwu v. City of L.A., (Review Denied 2000) dealt with an employee who complained of race discrimination August of 1991 and went to trial for retaliation through October 8, 1996. The court of appeals affirmed the verdict on this case involving retaliation years after the protected activity.

In Flait v. N. Amer. Watch Co., Flait was terminated in January of 1988 and alleged it was retaliation for reporting sexual harassment last in August of 1987, but first in March of 1987. The court held "[p]retext may be inferred from the timing of the company's termination decision."

Understanding California Wrongful Termination Law

Attorney Karl Gerber — Tue, 03 May 2011 04:25:00 GMT

The California Supreme Court has recognized that an employer's termination of an employee for reporting an alleged violation of a statue of public importance represents one category of wrongful discharge in violation of public policy. Moreover, wrongful termination can be based upon an employee checking on and trying to report possible illegal conduct to company officials,

In Holmes v. General Dynamics, the appellate court upheld a jury verdict for wrongful termination in which the evidence was that the plaintiff was fired for telling management their conduct violated a statute regulating public policy. The Holmes court held it was proper to instruct the jury that "employers shall not terminate employees in retaliation for disclosing to the employer's management a practice of the employer that violates the False Statements Act."

The Holmes court held the instruction was proper and provided clarification what the word disclose means. They held that disclosing means to "expose to view, as by removing a cover; uncover...The make known; divulge," The court held that applying these definitions,

An employer who fires an employee for 'exposing to view or 'making known' an employer's illegal conduct plainly violates a 'fundamental' or 'substantial' public policy regardless of the militancy or the decibel level of the report and even if the employee has chosen not to actively oppose the illegal conduct. A contrary rule would provide corporate managers incentive to terminate any employee after the employee has reported illegal activity but before the employees has had the opportunity to 'protest' such activity. Moreover, such rule would unfairly penalize an employee, such as Holmes, who deems it appropriate to address the situation by working through company channels rather than engaging in some form of adversarial conduct.

An action for tortious discharge is not strictly limited to those situations where an employer retaliated against an employee for refusing to violate a statute, performing a statutory obligation, exercising a statutory right, or reporting an alleged violation of a statute of public importance. An action for tortious discharge exists wherever the basis of the discharge contravenes a fundamental public policy.

Additionally, Soules v. Cadam, (review denied 1992) held "The rule that an employee may pursue an action for tortious constructive discharge in violation of public policy is not limited to situations where, as a condition of employment, the employer coerces the employee to commit an act that violates public policy or restrains the employee from exercising a fundamental right. Such an action will lie wherever the basis of the discharge contravenes a fundamental public policy,"

Fundamental public policies, for the purpose of the tort of wrongful termination, include statutes, regulations, and constitutional provisions. Where the lawmaking power speaks on a subject over which it has constitutional power to legislate, public policy is what the statute enact. Defendant has not cited a single case stating that any statute Masey bases his public policy argument on fail to inure to the public benefit thereby creating a wrongful termination cause of action.

In order to go forward with a Tameny styled wrongful termination lawsuit, the employee does not have to affirmatively refuse to engage in statutorily prohibited conduct, or complain about statutorily prohibited conduct. The courts have ruled that terminations in order to violate certain statutes create liability under this tort. Gould v. Maryland held an employer's termination of an employee to avoid paying accrued commissions and vacation pay violated California Labor Code Section 201 and created a wrongful termination case.

Wrongful Termination: Plans to Defraud

Attorney Karl Gerber — Tue, 26 Apr 2011 04:20:00 GMT

Terminations of employment that are carried out as a part of a plan to defraud are wrongful termination. Fraud is against public policy in the State of California, and is not a foreseeable part of an employment relationship. The Lazar Court remarked there is a "public interest" in pursuing the "policy objectives" underlying an action for misrepresentations. It is also declared fraud if an applicable public policy supporting a Tameny-styled wrongful termination cause of action.

Examples of terminations that are carried out as part of a plan to defraud include hiring an employees with promises of long term employment when the employer knows they are merely hiring the employee to pick their brain, and often divulge trade secrets; making misrepresentations about the financial health of the employer when the employer knows they may not be able to afford the employee's salary very long; firing an employee because they have complained of fraud being carried out towards customers, the government, or the public; firing an employee to avoid paying a wage due, including a large commission or bonus that is due.

Workplace Safety Violations Can Lead to Wrongful Termination

Attorney Karl Gerber — Tue, 19 Apr 2011 04:14:00 GMT

The California Labor Code has a variety of provisions (statutes) that require employers to provide safety and healthful work environments. The following Labor Code Sections require employers to provide workers with a safe place of employment and safety devices.

California Labor Code Section 6308 requires employers to provide necessary information about the correct safety gear and California Labor Code Section 6306 requires employers to provide safety equipment to workers.

California Labor Code Section 6310 prohibits discharge and discrimination because an employee has participated in a health and safety committee under Section 6401.7, or caused to be instituted any proceeding relating to an employee's rights about safety.

The letter and spirit of California Labor Code Section 6300 indicates it was enacted for the purpose of ensuring a safe and healthful work environment and encouraging employers to provide training about such.

The Labor Code also prohibits employers from exposing workers to hazardous substances, California Labor Code Section 6370. Workplaces where the employees are subjected to unsafe or unhealthful conditions are not legal. If an employee is discharged or retaliated against for complaining about these type of work environments, they may have a wrongful termination case. To find out if you have a case, contact a Los Angeles employment laywer from our firm today.

Investigations: Healthcare Worker Whistle Blowers

Attorney Karl Gerber — Tue, 12 Apr 2011 03:45:00 GMT

California Health and Safety Code Section 1278.5(b) prohibits healthcare facilities from discriminating or retaliating against employees who present complaints or grievances about the care, services, or conditions of a healthcare facility. California Health and Safety Code Section 1278.5(d) creates a rebuttable presumption the employee has been discriminated against for so reporting if the discriminatory treatment occurs within 120 days of the reporting.

31 U.S.C. 3729 (otherwise known as the Federal False Claims Act) and California Government Code Sections 12650-12651 (Otherwise known as the California State False Claims Act) prohibits all companies (including healthcare facilities) from making false claims for reimbursement such as to Medi-Cal or Medicare. False claims in the healthcare setting often involve submitting claims for services not rendered, or inflating the charges.

California Government Code Section 12940(g) makes it discrimination under the Fair Employment and Housing Act to harass, discharge, or otherwise discriminate against a person because they have made a report under Section 11161.8 of the Penal Code that prohibits retaliation against hospital employees who report suspected patient abuse by health facilities or community care organizations. This means that employees in nursing homes, assisted living facilities, or adult day care facilities may not be mistreated for reporting suspected patient abuse.

Healthcare workers are also whistleblowers if they are fired for making a complaint about something that they believe would result in the loss of their license. Additionally, a healthcare worker who is retaliated against for refusing to perform a service that they are not licensed for is also a whistleblower.

Welcome to our Wrongful Termination Blog

Attorney Karl Gerber — Wed, 23 Mar 2011 02:51:00 GMT

We are pleased to announce the launch of our Wrongful Termination Blog.