I recently counseled a woman who had been a three-year employee at a medium-sized company that imports household fixtures from Southeast Asia for wholesale distribution to home-and-garden stores. She was regularly given favorable job performance appraisals, and received no less than four significant pay raises during her employment.

 

Several months before our consultation, she caught one of her co-workers using the company color photocopier (used to print catalogs in-house) for the purpose of photocopying/counterfeiting stock certificates. She immediately brought this illegal activity to the attention of the company owner. To her surprise, he told her to “mind her own business.”  The employee about whom she complained was a 10-year tenured employee, manager of the warehouse, and personal friend of the company owner. When she threatened to report the unlawful conduct to law enforcement if the owner did not take immediate action, she was terminated from her job without notice or severance pay. Her boss told her that she was an “at-will employee” and could be fired at any time with or without cause.

 

While it is generally correct that the majority of the work force in California is employed “at-will,” there are several exceptions to the at-will doctrine, which may apply to her situation. In general, all employees are presumed to work on an at-will basis unless employed pursuant to (1) a written employment contract, (2) a union-negotiated collective bargaining agreement, or (3) those employment situations where the company’s human-resource policies specify that employees will only be terminated for certain enumerated causes or reasons.

 

Under the factual scenario I’ve presented, the individual was apparently terminated in retaliation for reporting unlawful conduct by a company employee utilizing company equipment to commit a criminal offense. Under both state and federal law, employees who engage in “whistle-blower” activity are protected from retaliatory termination by the employer. As in this example, if the employee had sufficient circumstantial and direct evidence to prove the quality of her work performance and the chronology of her “whistle-blower” activity prior to termination, the employer would be obliged to prove that the termination was for a legitimate business reason, unrelated to the whistle-blower activities. I suspect this would be difficult, given the facts presented.

 

A court action against an employer for job discrimination or wrongful termination is, in most cases, preceded by the filing of a formal complaint with the Department Fair Employment and Housing (DFEH). The DFEH will either undertake its own investigation or issue the complainant a “right to sue letter.” 

 

In many cases, a meritorious employment discrimination or wrongful termination claim can be resolved to the parties’ mutual satisfaction through an alternative dispute-resolution process known as mediation. Those cases not resolved through mediation or other alternative dispute resolution can be adjudicated through binding arbitration or a traditional court/jury trial. Wrongful termination damages may include past and future wage loss, emotional distress and, in some circumstances, an award of punitive or exemplary damages to punish the employer’s wrongful conduct. Frequently, a prevailing employee in a discrimination or wrongful-termination lawsuit will also be awarded reasonable attorneys’ fees in addition to the other damages awarded.