Retaliation and Wrongful Termination

If your employer fires or lays you off and you believe that this action is illegal, you should contact an attorney. An attorney can help you pursue a retaliation or wrongful termination claim. Wrongful termination arises when an employer fires, lays off, or terminates an employee illegally. On the other hand, retaliation occurs when an employer terminates an employee for trying to do the right thing, like filing a formal complaint or whistleblowing. If you are a retaliation or wrongful termination victim, our experienced attorneys at the Sexual Harassment Attorney can help.

Understanding Retaliation

One of the primary reasons people do not come forward after they are sexually harassed at work is the fear of employer retaliation. Retaliation happens when an employer imposes disciplinary action on an employee for reporting sexual harassment or other workplace misconduct. Sexual harassment is regarded as a form of discrimination. The person liable for the harassment could have the authority to fire or demote. Employees could choose not to report the harassment if the employee believes that their job and financial security are at stake. In some situations, if the incident is reported, the employer could expressly threaten to fire an employee, thus underlying this fear.

Protections have been established for employees who are sexually harassed in the workplace. The Equal Employment Opportunity Commission (EEOC) prevents employers from firing employees who report sexual harassment for retaliatory or discriminatory reasons. An employer could face severe penalties if it is uncovered that an employer retaliated or threatened retaliation.

Employer retaliation can include the following:

Scrutinizing or verbally abusing an employee who intends to report or has reported harassment to the EEOC.
Unjustly chastising.
Sabotage.
Exclusion from workplace activities.
Firing.

Retaliation means any materially adverse action against an employee who takes action to report discrimination. According to the EEOC, other forms of employer retaliation could include:

Disparaging the employee over the media or others.
Taking adverse action against another employee who is close to the employee who reported a sexual harassment incident.
Making the employee's work more complex, like punishing an employee for an EEO complaint by intentionally altering their work schedule to conflict with family roles.
Spread false rumors or treat the employee's partner negatively, such as canceling a contract with the employee's spouse.
Increased scrutiny.
Threaten to make or make reports to authorities, like contacting the police or reporting immigration status.
Engage in physical or verbal abuse.
Transfer the employee to a less desirable position.
Give the employee a performance evaluation lower than it should be, or reprimand the employee.

What You Should Do After Experiencing Retaliation

Knowing the steps to take if you face sexual harassment retaliation in your workplace will make a difference in navigating this challenge. Some of the steps could be:

Documenting The Retaliation Incidences

It is vital to document each incident after experiencing retaliation. This can include noting the locations, times, dates, and people involved. Gathering evidence like text messages, witness statements, and emails will be crucial in developing a solid case. Detailed documentation could bolster your case significantly, showcase the extent of the retaliation, and provide a clear timeline of events.

Reporting To The Management Or Human Resource

Reporting the retaliation to management or the company's human resources department is essential. Employers in California are required to take claims seriously and carry out a thorough investigation. You should be sure to provide all the documented evidence when reporting retaliation. The evidence will give a clear picture of the ongoing problems. It is also recommended that you regularly do a follow-up to ensure that the issue is handled correctly.

Seek The Services Of An Attorney

Seeking legal counsel is essential if the situation does not improve or escalate. An attorney experienced in handling sexual harassment and retaliation cases will guide you through the available legal avenues. Your attorney will assist you in understanding your rights and the appropriate course of action.

Factors That Could Make You File A Lawsuit In A Retaliation Incident

The following factors can lead you to petition your employer against retaliation:

Frequency And Severity Of Retaliation

You can petition your employer when severe and frequent retaliation creates a hostile working environment.

The Effect Of The Retaliation On Your Profession And Well-Being

You can file a case against your employer's retaliation because of the tangible and intangible consequences it could have had on your career and mental well-being.

Availability Of The Evidence

Substantial evidence, such as witness testimonies and communication records, will strengthen your case. Your lawsuit against retaliation could also succeed if you showcase clear instances of reprisals following a sexual harassment claim.

Employer's Inadequate Or Harmful Response

If your employer does not handle the issue appropriately or respond in a way that exacerbates the matter, it can proceed to a legal case.

Wrongful Termination Explained

Wrongful termination means an employer unlawfully laying off, firing, or terminating employees. Lawful reasons for laying off an employee include violating anti-discriminatory laws or breaching employer or employee contracts.

No single statute protects employees against wrongful termination in the United States. Instead, most state and federal statutes and court rulings help define wrongful termination. Most states in the U.S. operate on an at-will basis. In this case, employers can lay off employees without cause. The employees in California are covered by FEHA, which stands for the Fair Employment and Housing Act. On the other hand, the Department of Fair Employment and Housing abbreviated as DFEH, will investigate if a terminated employee files a wrongful termination claim against the employer.

Generally, at-will workers are not protected against termination or dismissal without cause. However, exceptions exist. Some workers may have entered into contracts with employers, which limits the employer's ability to terminate or fire them without cause. An employee may be in a union or labor organization. In this case, a benefit could be a collective bargaining agreement. The collective bargaining agreement could include limits and guidelines on how workers are laid off and disciplinary processes required before termination.

Termination is unlawful if its grounds are the employee's characteristics protected from workplace discrimination. For example, most statutes, including the Title VII of the Civil Rights Act and FEHA, prohibit discrimination depending on:

Employee's medical condition, like physical and mental disability or pregnancy.
Employee's gender or sexual orientation.
Employee's color and national origin.
Employee's race.
Employee's age.

Sexual harassment is encompassed in the anti-discriminatory policy. It also falls within the parameters of wrongful termination. It is unlawful to be dismissed or terminated because of reporting sexual harassment.

Some statutes protect employees against termination for reporting the employer to an external agency, maybe on safety, legal, or other offenses. These laws are called whistleblower laws. Additionally, California laws prohibit employers from terminating employees because of filing a formal claim about unpaid salaries/wages or workers' compensation claims.

At-Will Employment And Termination

Most employers and even employees assume that at-will employment implies that you can be terminated at anytime. Some people also think it shields an employer from wrongful termination claims. However, this is not true. Instead, at-will typically means that you have no agreement to work for a particular period and with specific benefits. In the past, new employees in California would sign a contract with their employers about the period they would work. Most employers and companies nowadays no longer operate this way. Instead, at-will status has been established instead of employee contracts. You can work for at-will employers, but it does not mean termination or firing is legal.

Unlawful Reasons You Could Be Terminated For

Wrongful termination can still occur even if you live and work in at-will states like California. You must recognize wrongful termination to file a claim. The following are the typical wrongful termination instances:

Covenant Of Good Faith And Fair Dealing

A court can establish that your employer terminated you unfairly, showing the employer's bad faith. For example, you could be terminated just before your benefits are processed. In this situation, your employer could have done so to avoid the cost of the benefits, thus acting in bad faith and unfairly dealing.

Public Policy

The court can rule that you cannot be fired for a reason that violates state, federal, or local public policy. This could happen even if the labor law or court decision does not outrightly state the scenario is wrongful. The examples can be:

Reporting your employer's violation of the law to an oversight agency.
When you refuse to perform some work when it is unlawful according to the public law.

Implied Contract

The court can discover that some employer policy or handbook implies a contract of employment. For example, your manual could highlight an explicitly stated disciplinary process. In this case, if you are terminated, you could argue that the manual implied that the disciplinary process must happen before termination.

Whether You Have Any Rights After Losing Your Job

An employee has rights upon termination. However, you should consult an attorney because many laws and procedures are specific to some cases. An attorney can provide you with accurate information. The rights you could have include:

Negotiating A Severance Package

Your employer is not required to offer you severance compensation unless stated in the employee handbook or an employment contract. However, an employee could bargain for a package in exchange for waiving legal complaints against the employer.

Filing A Wrongful Termination Complaint

An employee can decide to file a formal complaint against their employer. At this point, an experienced attorney will come in handy and offer specific legal counsel. The remedies to the employee's complaint could include:

Statutory damages like employer fines.
Covering legal fees.
Money damages.

Most claims about wrongful termination pass through DFEH.

Going Through Personal File

An employer should give the employee their file when the employee requests it. It is also advisable that you make a copy and keep it safe. The copy could be crucial when filing a legal complaint. A copy is necessary because the employer could modify your personnel file after terminating you. Your employer could easily do this to show that you were terminated on legal grounds.

Steps You Should Take Once You Have Been Fired

You should take several steps upon firing, especially if you believe it was a wrongful termination. Some of the steps could include:

Think Before Acting

Monitor your feelings and avoid acting on them when angry, shocked, and frustrated. Your action without proper legal guidance could hurt your case if you decide to take legal action.

Learn About Your Termination

Speak with your employer as much as possible. You could particularly ask the human resource department the reasons behind your termination. Inquire about who decided to fire you. You could also request to go through your personnel file.

Do Not Bow To Attempts Of Intimidation

The only way to contest the legality of your termination is through your efforts, even if an employer is responsible for ensuring terminations are legal. The employer could be aware that they did something unlawful. Your employer could intimidate you to avoid any legal process and punitive measures. At this point, an employee is the only person responsible for their justice and safety.

Know Your Rights

Revisit any documents or paperwork you signed when you were employed. The documents could include:

Anti-discriminatory policies.
Employee handbooks.
Human resource training about discrimination and termination.

The above documents could show or otherwise imply processes that should have occurred in case of your termination but did not.

Keep Track Of Any Evidence

Any documents that support your claims could be helpful if you suspect the termination was unlawful or wrongful. The documents could include:

Social media posts, instant messages, face-to-face or group meeting notes, texts, or emails. Gather sufficient evidence and keep it in a place your employer cannot access.
Damaging documents, such as evidence or witnesses to the discrimination, should be destroyed.
Positive documents indicate your contribution and value to the company and any promises your employer made. They could also include personal feedback on projects and internal reviews with a supervisor.

Consult A Labor Attorney

An attorney specializing in wrongful termination and labor law can help you understand your rights. Your attorney will also help you know various ways to report and investigate your case.

Comply With Post-Employment Procedures

Post-employment procedures can include returning any of your employer's property and leaving the premises as ordered.

Confirm All Agreements In Writing

This can be similar to the document that outlines the reasons for your firing, according to the employer. It could also be as simple as acknowledging that you have been fired and did not resign. You should also document this in writing if you pursue continued medical, a severance package, benefits, or other pay.

Knowing If You Were Fired Wrongfully

Unlike some workplace incidents, which could be obvious, it is hard to determine whether your firing was unlawful. Most employment petitions require that an employer fire an employee before the employee files a complaint. Upon your termination, the best thing to do is to gather sufficient evidence and hire an experienced attorney. The attorney will assist in investigating and determining if your firing was wrongful.

If you are not sure about your firing, the following guidelines can assist you in determining if your firing was unlawful:

If you have sufficient evidence, either verbal, written, or otherwise, which shows that you were terminated on the grounds of discrimination.
If another employee cautioned you about pursuing formal action against your employer.
If you opened up either to an oversight agency or your employer regarding harassment or another unlawful workplace situation, like a lack of safety procedures or wage imbalance.
If your superior or employer assured you that your job was never at risk.
If you feel your firing is against your tangible written contract or any worker handbook, which addresses punishment and the firing process.
If you know a workplace superior employer, or you showed that there is a bias against or towards certain types of people.
If you feel that you are being treated differently from your colleagues on the grounds of protected factors like sex, age, and race.
If you know of circumstantial evidence that you were terminated on the grounds of discrimination, Circumstantial evidence is not always clear proof. However, it can reveal discrimination. For example, it could be that only men aged 50 years were terminated or that the employee was fired after disclosing a personal factor like pregnancy or religion.

Find an Experienced Attorney Near Me

Every employee has a right to fair treatment in the workplace and should not be a victim of retaliation and wrongful termination. If you are a retaliation and wrongful termination victim, you should contact an attorney. At the Sexual Harassment Attorney, we have helped many clients pursue legal action after retaliation and wrongful termination. It does not matter whether your case is intricate or straightforward. Our attorneys have handled countless retaliation and wrongful termination cases and achieved favorable outcomes. We will be happy to assist you. Contact us today at 800-905-1856 to speak to one of our attorneys.