If you are an at-will employee in California, you can be terminated for any reason, no reason or arbitrary reason, as long as it's not a discriminatory reason based on a protected class (i.e. gender, age, disability, sexual orientation, familial status), or retaliatory reason based on engaging in one of the protected activities under the law (i.e. complaining about unlawful harassment at workplace, complaining about safety violations, reporting fraud or improper government activities to outside agencies, reporting patient abuse at a healthcare facility, filing a complaint for unpaid wages or overtime, requesting reasonable accommodations to a disability, etc).
Thus, being terminated for unfair or false reasons is not against the law, unless there is actual evidence that the true reason for firing is either discrimination or retaliation and that the reason given by the employer is just a cover up for unlawful discrimination or retaliation, as it very often happens.
An experienced employment attorney should be able to review the facts of your employment and termination and advise you whether there is sufficient evidence to support a claim for discrimination or retaliation in your situation.
Despite the sophisticated work done by many of the software companies in the San Jose and Silicon Valley area, they have the same retaliation issues that arise in other industries. One typical kind of unlawful retaliation is when an employee raises concerns about being improperly classified as a contractor or not being paid overtime, or not being provided proper meal and rest breaks. Many managers in these sophisticated companies feel that they can do no wrong and they certainly don't appreciate when their employees are being "insubordinate" by complaining about wage laws violations. That's when the write-ups, the negative performance evaluations, the performance improvement plans and the micromanaging begins. It's easy to find faults in a software engineer or developer's work or to make it look like he/she is not meeting deadlines/expectations in order to cover up the retaliatory motive for termination.
Unfortunately, I am yet to see a performance improvement plan (PIP) that does not end up in termination. Even though some of these plans sounds like they believe that the employee will improve and will continue to be part of his/her team at a company, usually it's just a formality before "final warning" and notice of termination.
Proving a retaliation claim in court is not easy, but such elements as timing of events, history of performance and statements/testimony of co-workers and/or previous managers prove to be very helpful, if not critical, in winning those kinds of claims or settling them successfully in and out of c
It is important to keep in mind when you are attending an appeals hearing of unemployment benefits denial that the decision regarding whether to award you the benefits rests in one person's hand - the administrative law judge who hears your case. As objective as they judges try to be, they are still human beings, and it is well worth getting on their right side. Therefore, it is in your best interest to maintain the most civil, polite and pleasant demeanor so that you make the right impression on the judge. This is particularly important when you are facing a "he said / she said" situation - where you are accused of being terminated for "misconduct", such as insubordination, or being rude toward your supervisor, and you deny engaging in the acts or behavior that you are accused of and for which you were fired.
The more likable you are to the judge and the less inclined you are to show anger or resentment toward the employer, the more likely the judge is to believe your version of the events and to site with you. This is especially true when you have been terminated for alleged insubordination or for being rude to your management. The nicer you are at a hearing, the harder it will be for the judge to believe that you are capable of being as rude and as insubordinate as the employer claims you were. But even if you were, under the precedent cases, including Silva v Nelson (1973) - a one time loss of temper during an argument with an employer is generally not grounds for denying unemployment benefits. In that case, the court pointed out that to result in "misconduct" disqualification in an isolated instance of insolence, it must be shown that the employee's act or statement was a substantial breach of an employee's duties, deliberately performed or performed in willful and wanton disregard of those duties and of his employer's interests. That case as well as Johnson v Brown and Turner v Brown (1961) held that generally a single hotheaded incident, such as making derogatory remarks about the company to the company's manager, cannot be considered the type of premeditated and seriously improper conduct which is sufficient to deny unemployment compensation benefits to an employee.
The result can be different, however, in a case where an employee has been previously warned about his behavior. Hayward v Employment Security Commission (1971).
I am amazed by the number of calls I get from nurses and nursing assistants at Kaiser from San Jose facilities and all around the bay area with remarkably similar complaints and concerns of either being retaliated for complaining about their supervisor's unsafe, unlawful or unethical actions, or struggling to ensure that their work related injury or disability is dealt with properly by the employer, and that the reasonable accommodations are provided to the extent possible, as mandated by the California and Federal disability laws.
Kaiser defends all claims aggressively and it's hardly surprising, as the company of that size would not want to set a precedent of "rolling over" and giving in easily. Having said that, I have enjoyed and enjoy pursuing cases on behalf of those former employees of Kaiser whose compelling story of employment and termination make it worthwhile to not only seek financial compensation for victims of unlawful treatment at workplace but to set a possibly higher precedent that those who violate human dignity lightly will have to pay for it. Such compelling stories commonly include a medical professional with 20, 30 or even more years of employment with Kaiser with nearly stellar performance history and promotions, who has been set up through a paper trail to be terminated for "insubordination", "poor attendance", or some other vague or even worse - fabricated reasons for firing.
Even in this day and age, employers continue to discrimination in hiring and in terms of employment based on an employee's race. This can be as mild as being more strict in imposing a discipline with employees of one race than with employees of other races, or Caucasian employees to demotions and termination. Some employers think that as long as they don't use racially offensive language, they will be able to cover up their discriminatory intent under the "at will employment" blanket and/or fabricating highly subjective reasons for terminating an employee, such as poor performance, insubordination, etc.
Luckily, there is a whole body of law that the courts have developed over the years that provides guidance on using the inconsistencies / contradictions in the reasons given of employee's termination to prove or at least create and inference of racial or other kinds of discrimination against an employer. This is because the courts have found many years ago that when an employer provides reasons for employee's termination that are not true, the most likely reason for it is that the real reason for firing is illegal and/or discriminatory.
Successful prosecution of a claim such as described above often requires intense discovery and careful analysis of the documents in both - the aggrieved employee's personnel file and in the employer's policies and internal communications.
It is not a secret that many companies strongly prefer that their sales stuff consist of physically attractive individuals - be it very young and attractive women, or both men and women who are still - young. It has been recognized for many generations in business that beauty sells, and beautiful people sell more and better. However, legitimizing this kind of approach to employing sales people in any industry perpetuates discriminatory employment practices against older workers, thereby turning them into victims of something that is completely out of their control, and something that awaits each and every one of us - being older - if we are lucky enough to live that long.
California Fair Employment and Housing Act prohibits not hiring, termination or otherwise discriminating against potential or existing employees based on age. Of course, the vast majority of employers this day and age know better than tell an employee outright that they terminated him/her because of age. However, there are other, creative ways to prove age-related bias by the employer against an older employee through the so-called "circumstantial" evidence. This typical includes encouraging an employee to retire early, giving an employee age-based nicknames such as "dad" or "father time" or "oldie" or "grandpa," making such comments as "we need fresh blood in here" or "we need someone faster," or systematically replacing older workers with the younger once due to fabricated performance issues. This kind of evidence may be critical in trial or in any attempt to settle your age discrimination claim. Therefore, it's critical that you preserve as much of the documentation as possible that would reflect one or more of the above kinds of evidence.
Although given the realities of running a business, there is no way to assure that an employer will fully comply with the complex disability laws that apply to a California workplace, implementing infrastructure that would allow management and human resources personnel to follow certain steps and ask the rights questions in order to ensure that the disability rights of a worker are protected would be very effective in minimizing the risk of violating disability rights, which would of course benefit both - the employer and the qualifying employees.
Having conducted many dozens of depositions of human resources managers and other corporate representatives in charge of hiring and termination decisions in large companies, I have often heard a "no" in response to my question about whether a given company has a set of written rules, guidelines or any other kinds of written reference for the decision makers to ensure that the follow the law when they evaluate whether reasonable accommodation should be provided to a particular employee. Many of those employers were among the Fortune 500 companies who could surely afford to have these tools in place for their management, and yet they didn't.
It was refreshing for me to find out recently that one company - Macy's - has a specific questionnaire in place that its managers are supposed to use when assessing what accommodation, if any, should be provided to an injured/disabled employee. A copy of that document is attached below. Of course, having this document available to the management does not mean that the managers will actually use it when they have to or that they will use it in a way that will help them comply with the law, it's a great start and is surely better than not having anything at all.
California Fair Employment and Housing Act (FEHA) makes it unlawful for the employer to fail to make reasonable accommodation for the known physical disability of an applicant or employee except where the employer demonstrates that an accommodation would produce undue hardship on its operation. Additionally, under FEHA, it is unlawful for an employer or applicant to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical disability.
To maintain a claim for disability discrimination and failure to accommodate, it is critical that the employee in question requests an accommodation and makes his or her disability known to the employer's decision makers, especially then the nature of the disability is not obvious (obvious disabilities include being in a wheelchair, missing a limb, being known to be deaf, etc...). Many employees make the mistake of going too far when guarding the confidentiality of their medical condition, and they don't disclose even the general nature of their non-obvious disability (for instance, diabetes, asthma, etc.) because they are so concerned about their privacy. This kind of strategy is misguided, as that employee will have little to gain but a lot to lose from being protective of his medical information in the context of expecting accommodations. An employer simply cannot be expected to provide reasonable accommodations and to enforce other disability rights of a disabled employee if the company is not aware of the underlying medical condition. Placing the employer on formal notice of your condition by providing medical documentation with diagnosis and suggested modifications/accommodation will be really helpful to the employer who wishes to do the right and comply with disability laws and to that employee who has to battle the bad employer who either intentionally or due to ignorance of its management is not willing to comply with the same laws.
For more information on disability rights, please visit my San Francisco Employment Lawyer Blog.
It is not rare for the companies in the Silicon Valley, especially the smaller employers (under 200 employees), to try to avoid paying commissions to their employees by terminating them or breaking the employment contract with those employees shortly before the commissions on sales or transactions are due. This is especially true when the amount of commissions is substantial.
Luckily for employees, under California law, a commissions employee is entitled to commission when the work for which commissions due had been substantially completed. Thus, in most cases if bulk of the work for which commissions are due has been done, even if it wasn't fully completed, the employee will likely be owed the full amount of commissions after the transaction has been completed, and the employer cannot avoid paying commissions by simply firing an employee shortly before they receive payment. Thus, if an employee completed all the major step of the transaction, i.e. - finding the customer, making a sales presentation, providing the business proposal and verbally closing the deal, the employer can't avoid paying just because a signature on the contract has not been obtain before the sales person was terminated or because the employer hasn't been paid on the day of the employee's termination.
Of course, the employer will try to justify the coincidence of terminating an employee right when the commission are due with typical reasons, such as "insubordination" or poor performance, but this does not change the fact that comissi