Wrongful firing of Employees in Violation of Public Policy
Posted in the California Forum
Since: Dec 12
#1 Jan 23, 2013
by Michael Papuc
Attorney at Law
44 Montgomery St., Suite 2405
San Francisco, CA 94104
San Francisco Attorney Michael Papuc represents employees in wrongful termination actions against employers.
Employment contracts are generally terminable at will California courts recognize a narrow exception: "(A)n employer's traditional broad authority to discharge an at-will employee may be limited by statute ... or by considerations of public policy." ... "As such, a wrongful discharge suit exhibits the classic elements of a tort cause of action." (Tameny v. Atlantic Richfield Co., supra, 27 Cal.3d at 176.)
To establish a claim for wrongful discharge in violation of public policy, each of the following must be proved:
1. An employer-employee relationship;
2. Employer terminated plaintiff's employment (or took other adverse employment action;
3. Termination of plaintiff's employment was a violation of public policy;
4. The termination was a legal cause of plaintiff's damage; and
5. The nature and the extent of plaintiff's damage.(See Holmes v. General Dynamics Corp.(1993) 17 Cal.App.4th 1418, 1426, fn. 8.)
Tameny claims extend to demotions, suspensions without pay, whistle blowing, "even though the ultimate sanction of discharge has not been imposed." (Garcia v. Rockwell Int'l Corp.(1986) 187 Cal.App.3d 1556, 1562.)
The existence of a pertinent public policy is crucial to a Tameny claim. A four-part test is utilized in determining whether a particular policy can support a common law wrongful discharge claim. The policy in question must be:
1. Based on either a constitutional or statutory provision (or ethical rules or regulations enacted under statutory authority);
2. "Public" in the sense that it "inures to the benefit of the public" rather than merely serving the interests of the individual;
3. Well established at the time of discharge; and
4. Substantial and fundamental.(Stevenson v. Sup.Ct.(Silo v. CHW Med. Found.(2002) 27 Cal.4th 1097, 1104).)
Because the employer's violation of a statute on a particular subject is also a violation of public policy, firing an employee for reporting the violation to appropriate authorities violates public policy.(Jie v. Liang Tai Knitwear Co.(2001) 89 Cal.App.4th 654, 660–661.)The employee need not prove that the employer actually violated the law: "(I)t suffices if the employer fired him for reporting his ‘reasonably based suspicions' of illegal activity." (Green v. Ralee Eng. Co.(1998) 19 Cal.4th 66, 87.) The policy violated by the employment termination must be one inuring to the benefit of the public. Policies are not "public" when they are derived from statutes that "simply regulate conduct between private individuals." (Foley v. Interactive Data Corp.(1988) 47 Cal.3d 654, 669.)
The law surrounding the facts of each claim is complex and contains many subtleties. Damages in a case properly proven may include lost wages and benefits, emotional distress, possible punitive damages, possible attorney fees.
The down-side is that the employee will have difficulty finding another job if he or she sues the former employer. Also, the employee cannot expect former co-employees to testify favorably for the employee,.
There are administrative requirements of timely filing a claim with the California Department of Fair Employment (DFEH)(one year) or Equal Employment Opportunity Commission (EEOC)(180 days from adverse employment determination), before bringing action. It is generally more favorable to sue in California state courts under DFEH, after receiving right to sue letter, as opposed to bringing federal claims (no right to sue letter required, but suit must be filed no earlier than 60 days after submission of charges to EEOC, and no later than 90 days after EEOC notifies claimant of results of investigation.)
#2 Jan 24, 2013
Blame the law system of the democrats in california, always flouting the constitution, just like their big brother Obama!
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