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How to sue for wrongful termination in 8 steps

By on July 19, 2019

We, at Crosner Legal, are here to fill employees in on what you need to know before suing your employer for wrongful termination. This article will explain the process for filing a wrongful termination lawsuit under California and federal law. It will also explain the types of actions taken by employers that generally result in wrongful termination lawsuits. 

The primary steps that must be taken to sue your employer for wrongful termination are:

  1. Determine if you are an “employee” under the law
  2. Review your employment agreement to see if you are an at-will employee or have a different contractual agreement
  3. Obtain your employment file (i.e. personnel file and payroll records)
  4. Gather together all other documentation for proof (“evidence”)
  5. Put together a chronological timeline of events leading up to your termination
  6. Consult with an experienced wrongful termination attorney
  7. File an administrative complaint and obtain a “Right to Sue”
  8. File a lawsuit complaint in civil court

Am I an employee according to the law?

It is important to first determine your employment status under California law. Basically, you want to determine whether you are an employee or an independent contractor. An initial way to determine whether your employer has classified you as an employee or independent contractor to check whether your employer issued you a W2 or a W9. A W2 is issued to employees, while a W9 is issued to independent contractors. However, it is important to know that just because your employer classified you as an independent contractor does not necessarily mean you are one under the California or federal law.

Pursuant to Labor Code Section 3351, you can only be considered an employee if you are working under the direction, supervision and control of an employer. On the other hand, an independent contractor is described as a person with a business which provides products or services and whose business has the ability to control the means by which these services are provided. In other words, your status as an employee under California law is dependent on the amount of control that your employer or supervisor has over the way you work.

A common mistake people make is claiming wrongful termination when they end a business relationship in which neither party was an employee. This does not qualify as a “termination.” If two businesses terminate the relationship unlawfully, this would be classified as a “breach of contract,” which is a different type of lawsuit.

Can I make a claim against wrongful termination as an at-will employee?

According to the Labor Code Section 2922, at-will employment can be terminated at the will of either party as long as one party notifies the other. Any employment in California is considered to be at will if there is no contract that specifies the employer’s ability to fire the employee. While being classified as an at-will employee generally means that your employer can fire you for any lawful reason or even no reason at all, there are still grounds for which you can file for wrongful termination. 

Under federal law, there are several reasons for which the termination of an at-will employee would be considered to be unlawful. The primary reasons for an unlawful termination under California and federal law would be if an employee was fired as a result of being part of any of the following protected classes:

  • Race
  • Gender
  • Age (employees over 40 years)
  • Religion
  • Disability
  • Pregnancy

The State of California also considers it unlawful for an employer to terminate an employee due to their sexual orientation, political beliefs and affiliations, or because they took time off from work that they were legally entitled to. Under the Labor Code Section 1102.5 subd. (a), the State of California also prohibits employment termination for an employee who has disclosed information to the government about the employer violating laws, otherwise known as “retaliation.” 

Another form of “retaliation” occurs when an employee is terminated after complaining or reporting an unlawful action taken by their employer. This unlawful action can be not paying employees properly, being sexually harassed, or subject to a hostile work environment, among many other things. Notably, the employee does not necessarily have to be correct in their belief that the actions taken by their employer were unlawful, but rather only must have a “reasonable belief” that the actions were unlawful. Similarly, if your employment is terminated because of a complaint to the Labor Commissioner concerning low wages, then you can file for wrongful termination based on retaliation. 

As you can see, employers have the right to fire at-will employees for any reason as long as it is lawful, but if the grounds for termination include any of the above-mentioned, you can sue your employer for wrongful termination.

Employees under contractual agreements.

Employees who have executed contracts with their employer which do not classify them as at-will can generally sue their employers for wrongful termination if there was no “good cause” for the firing. More specifically, if the contract between you and your employer does not specify the circumstances under which you can be fired, your employer can generally only terminate you under the following circumstances:

  • If you willingly breach one of your employment duties
  • If it is proven that you habitually neglect your employment duties
  • If you are unable to perform your employment duties for some reason. 

For immigrant employees, you should know that your employer has a limit to their ability to investigate your legal status. The federal government gives a clear indication of the types of documents that are required by your employer before providing employment to you.

Now that you’re in the know the primary instances in which you can file for wrongful termination, we can discuss how to file the case. 

Documenting the case. 

Once you have determined that you have a valid claim for wrongful termination, you should begin to gather together all of the documents and records that can provide support to your claims. This is known as “evidence.” You will have to provide ample proof of your wrongful termination. This can be a difficult task in a discrimination or retaliation case because there is not always a perfect paper trail. 

Many you can support your case with persuasive or circumstantial evidence. For example, a common wrongful termination case occurs when a pregnant woman or an injured individual is prescribed  by their doctor a medical leave from work for a definitive period of time, and is terminated during this time period. Under these circumstances, California and federal law will generally provide a presumption that you were unlawfully fired by the company as a result of the employee’s pregnancy and/or disability. 

Employee handbooks can be a strong piece of evidence. This is because many handbooks describe the types of actions that can result in termination, and whether other disciplinary measures must be taken prior to termination. Therefore, if your employer does not follow any of the procedures outlined, this would be strong evidence of an unlawful termination in breach of the company’s own rules. This is sometimes called a “wrongful termination in breach of contract,” or “wrongful termination in breach of an implied contract.”

It is also advisable to write down recollections of oral conversations that led to your termination. If you have not been terminated yet, it is highly advised that you keep a contemporaneous journal of events and date the entries. These notes can play an important role in determining the motivation for your employer’s termination of you. Remember to make these notes or entries as clear and concise as possible including the date, all participants of the conversation and the place of conversation.

Get your employee file.

It is paramount that you obtain your employment file. While this can provide strong evidence in support of your case, it can also help you better understand your employer’s defenses to a wrongful termination case. Many times personnel files will include internal emails between company personnel discussing reasons for an employee termination, or have all the disciplinary records or performance reviews, etc.

In California, every employee has a right to obtain a copy of their employment file from their employer. You can simply write an email, send a letter, or even a text message to your employer (generally Human Resources or their legal department), saying the following: “I, [insert name], hereby request my employment records, including my complete personnel file, payroll records and all documents that I have signed relating to my employment with [insert company name] under California Labor Code Sections 1198.5; 226(b) and 432.” If the company does not produce these records to you within 30 days, you are entitled to a $750 penalty under California law.

Ask Around.

Obtaining witness statements from former coworkers or colleagues supporting your claims can be very helpful in providing wrongful termination. You can obtain affidavits from them signed under penalty of perjury stating that they were present while discriminatory or retaliatory statements were made about you, or that they were also subjected to a similar or the same type of discriminatory or retaliatory treatment. 

Chronological Order of Events

Sometimes you can trace your employer’s motivation from the events leading up to the termination. For instance, you might have reported a violation of health regulations at the hotel you are working for. A few days later, you realize your supervisor is avoiding you. This could also be followed by your employer constantly reprimanding you for minor violations that your colleagues get away with all the time. Then, a few days later you are fired. The timeline of events will help illustrate that your termination was likely the result of unlawful retaliation.

Consult the right attorney.

As with most types of lawsuits, it is very helpful to retain a lawyer experienced within the area of law. Here, you should consult with an employment law firm which focuses in wrongful termination cases. Most employment attorneys who specialize in employment law, like us at Crosner Legal, will provide a free initial consultation. Many law firms, including Crosner Legal, will take your wrongful termination case on a contingency fee basis. This means that you do not have to pay any fees upfront and only have to pay a fee and costs once you win or settle your case.

File an administrative complaint.

The California Department of Fair Employment and Housing (“DFEH”) also provides a means by which you can ensure you are not fired for illegal reasons. Upon submitting a complaint with the DFEH, the department will look into your case to determine if the termination was lawful.

The first step is to submit an intake form at https://www.dfeh.ca.gov/ within one year of your termination. The online submission form will request information about yourself, your former employment, your termination and why you think it was illegal.

If the department finds that your evidence is sufficient to constitute a valid wrongful termination lawsuit, an investigator will contact you in 60 days or less to ask questions about your termination. At that stage, you can provide them with copies of documents and other evidence you have collected in support of your claims. The department will then draft a complaint which you sign and is sent to your former employer.

A response from your former employer is generally expected within approximately 30 days. It is advised that you discuss your former employer’s response with the DFEH investigator. The investigator may also meet with your former employer to discuss their defenses and then contact you in an attempt to negotiate a resolution of the matter. The DFEH provides free mediation to resolve disputes. If, following a mediation or other informal negotiations, you and your former employer are still unable to resolve the dispute, the DFEH can decide to file a lawsuit in court on your behalf.

Right-to-sue.

Before filing a lawsuit in civil court, you first need to obtain a “right to sue” notice from the DFEH by filling a form. This is done online by first opening a free account with the Cal Civil Rights System (CCRS). This is a mandatory step even if you skipped the mediation process with the DFEH and want to go straight to court. 

Filing a wrongful termination lawsuit in court.

One of the initial steps of pursuing a formal lawsuit in civil court is filing a complaint. This is different from the administrative complaint filed with the DFEH. A lawsuit complaint outlines your allegations against your employer and all the damages you’re seeking as a result of those actions. It is highly advised that you retain an experienced wrongful termination lawyer to draft and file the lawsuit complaint. You do not need to provide evidence when filing this complaint, but the complaint should have an accurate description of your reasons for your termination in the form of “causes of action.”

Once the lawsuit complaint is filed, it must be served on your former employer, or the attorney who is representing them. When serving the lawsuit complaint on your former employer, you should always serve it on the company’s “agent for service of process.” This information can be obtained from the California Secretary of State. The best way to handle to service is to hire a company who specializes in service of process, such as One Legal or First Legal. You can click here for more information on service of process: http://www.courts.ca.gov/1089.htm.

Study the response from your former employer.

Your former employe is the “defendant” in the lawsuit. The defendant must file a response to the lawsuit within 30 days of service of process. In most cases, they will deny most or all of your allegations. Sometimes they may include counter-claims or even ask the court to dismiss the case in the event that you failed to state a claim. 

In other instances, your former employer may approach your attorney to discuss a settlement offer. Your attorney may recommend to you whether you should accept the settlement offer or reject it, but the final decision rests upon you. 

Sometimes the dispute may remain unresolved at this stage. If the court doesn’t dismiss your case, it goes to the next phase which is the discovery phase. This will include interviews taken under oath, written questions and requests for documents. You are also likely to be called in for a deposition by your former employer’s attorney. Don’t worry, your attorney should prepare you for this process.

Your former employer may put forth additional settlement offers at any stage during litigation for higher amounts or lower amounts. It is common that settlement offers will be increased or decreased depending on the evidence that is revealed during the discovery process.

Trial.

The discovery process is quite lengthy. It can take several months or even several years in some cases. If the case remains unsettled, eventually you will have to work with your attorney in preparation for trial. In order to prevail in a trial, you have to present evidence and gather witnesses.

Give the names and contact information of former colleagues who you want to appear as witnesses to your attorney. The attorney will arrange for a meeting and use what they know in preparation for their testimonies. Since you’re likely to be called on the stand, you will also need to be adequately prepared by your attorney.

There you have it. All you need to know on how to sue your employer for wrongful termination. Crosner Legal will be more than happy to answer any further questions on this subject that you may have, and also provide you with a free consultation for any potential wrongful termination claims against your current or former employer. 

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