What is wrongful termination?
“Wrongful” is a term of art. It doesn’t mean hurtful, unfair, or unjustified. It means illegal, i.e. it violates one of the specific anti-discrimination or anti-retaliation employment laws. Many workers struggle with understanding that no matter how “wrongful” they believe their termination is, it cannot be the basis for a legal case unless there is specicic evidence of unlawful discrimination or retaliation based on being a member of protected class (i.e. disability, race, gender, sexual orientation, familial status, age, religion) or engaging in a protected activity (i.e. complaining about unlawful harassment, discrimination, safety violations, crimes, violence, etc).
What is the role of EEOC or DFEH in my case?
The role of those agencies for the most part is symbolic and it’s just a necessary formality before a lawsuit for discrimination can be filed. In most cases, these agencies find no evidence of discrimination, they close the file, and they issue a right-to-sue letter. This can take anywhere from a few months to a year or long. An attorney can skip the whole process and obtain the right-to-sue letter on line in just a few minutes. Obtaining the right to sue letter from either DFEH or EEOC is a legal requirement before a lawsuit based on the same allegations can be filed, and no case for discrimination in violation of FEHA, ADA, FMLA, or CFRA can be brought without that requirement being met first.
What are the deadlines for filing a wrongful termination lawsuit in California?
Different deadlines applies to different kinds of case. A wrongful termination case that’s based on discrimination, retaliation or harassment in violation of FEHA requires filing a charge with DFEH or EEOC within one year of the most recent discriminatory act by the employer (usually the termination date). When one of those agencies issue a right to sue letter, it will provide for the deadline for you to file a lawsuit. In other cases, the deadline can be anywhere from two to four years from the termination date, depending on the claims that form the basis for your wrongful termination case.
What evidence is used to prove wrongful termination, discrimination, harassment and retaliation?
There are five main types of evidence that can be used to prove any of those claims.
i. The best and the most rarely available evidence is a document reflecting discriminatory or retaliatory intent, such as an e-mail by a manager about one of his employees stating “I am so tired of his disability whining” or “this Mexican is lucky to have a job; he is probably illegal” or “he thinks he can complain about me to hr… I will show him what happens when he stirs sh-t up.”
ii. The second best evidence is a declaration by an independent witness who overheard or was present when the discriminatory or retaliatory statements were made by a manger or a decision maker in terminating you.
iii. In retaliation claims, timing is another important peace of evidence. Being terminated shortly after filing a workers comp claim, or requesting accommodations, or complaining harassment is evidence of possible retaliation, although that alone is often not enough to prove retaliation and retaliatory wrongful termination.
iv. Treating other employee who commit similar alleged violations more leniently due to them being a member of protected class.
v. Lastly, inconsistencies in the reasons provided for your termination and in the overall version of events that lead to your termination is another kind of evidence that can be used in proving wrongful termination. This includes an employer’s failure to follow their own policies of progressive discipline, shifting reasons for termination, laying an employee off due to alleged reduction in force or restructuring to only post a vacancy shortly after (a common tactic in age discrimination cases).
What is the likelihood that I will win my wrongful termination case?
There can be no guarantees that you will win or recover any amount in your case, because the outcome of your case depends on so many factors that are not in your or your attorney’s control, including how hard the employer fights and their approach to your case, your expectation, and how the court will handle your case. Attorneys cannot and are generally not allowed to guarantee results, and if any attorney assures you of successful outcome of your case, this should be a serious red flag. An attorney can only express his opinion regarding the merits of your case and the likelihood of success and do his best to pursue the case.
Are settlement and awards in wrongful termination cases taxable?
Yes – wrongful termination settlement and awards are taxable like any ordinary income, such as wages. Sometimes, an arrangement can be made where part of the settlement is classified as 1099 income and the other part of settlement is issued as W-2 wages, where all the common deductions are taken. Of course, you will not be taxed on your attorney’s share of the settlement in contingency representation arrangements. You will also not be taxed on any costs spent on pursuing your case.
I signed arbitration agreement with the employer I am suing? How does this affect my case?
If the agreement is valid and enforceable (something that your attorney can determine) then your case will be handle by a private arbitrator, rather than the court. There are possible advantages and disadvantages to this. If your attorney determines that the arbitration agreement is invalid and unenforceable for one or more legal reasons, he can (and in most cases should) fight to keep the case in court and avoid arbitration.
How long will it take to settle or win my case?
This depends on many factors – what you expect v the employer’s position, how busy the specific court where your case is filed and what that court’s rules and filing schedule is, as well as how eager the employer’s attorneys are to move the case forward. Some cases resolve in a matter of a few months, while others can last as long as 1.5 years or even longer.
How much is my case worth?
This is one question that claimants love to ask and lawyers hate to answer. Again, this depends on your expectations, the employer’s attitude to your case, the facts of your case, your most recent wages while working for the employer to be sued, your ability or inability to find a new job, and any other mitigating or aggravating circumstances of your case.
Will my boss / harasser be personally liable if I win my case?
Individuals are not liable for discrimination or retaliation under California law. However, they can be sued and held liable for unlawful harassment, defamation, assault and a battery and a limited number of other cases.