San Diego Wrongful Termination Lawyers
Any employee can sue their employer for WRONGFUL DISMISSAL, which includes:
- Employees on probation
Wrongful dismissal is what it is called when you are fired UNFAIRLY.
What Is Meant By Unfairly?
- Fired without notice
- fired without just cause (proper reasons)
- fired without warning that work was wrong or substandard
- Fired because you are not prepared to accept a big change in your job. For example:
- Lower wages,
- Reduced or significantly different working hours
- Different duties
- You cannot sue if you are a worker on a contract for a fixed period or if you are a member of a union. For example,
- If you are hired to work for 8 weeks and at the end of the 8 weeks, your employment is not continued, you do not have a claim.
- If you are a seasonal worker and you are not taken back by the employer in another season, you do not have a claim.
- If you are a unionized worker, you cannot sue. Contact your union for advice and assistance as soon as possible if you have been terminated.
What Does Suing Get You?
- In a court case in Small Claims Court the only thing that you can get is a damage award which means money. You cannot get your job back. The amount of damages is normally based on the amount of time you have been with the employer, your age, and the type of work you performed. A rough rule of thumb is that you should sue for 1 month’s wages for every year you have worked there. You should also include your vacation pay for the notice period. It is quite possible that the judge will actually give you less or more than one month’s wages for each year you were employed.
- In addition to wages, you can also get the cost of benefits for the same period of time. If you had a medical/dental plan and you are claiming for 4 months of pay, you could also claim the cost of your medical/dental plan for a 4-month period.
- You are also entitled to claim expenses for the cost of job searching for other work.
What Do You Need To Prove Your Case?
- The first thing you have to prove is that you are an employee. That can normally be done by:
- Your letter of termination;
- Your employment insurance record of employment;
- Pay stubs.
- You must show that you were terminated without proper notice. Your employer will then have to prove that you were fired for “just cause.”
- The categories of JUST CAUSE that the Courts say allows an employer to fire a worker are:
- serious misconduct:
- Fraud and dishonesty
- Serious and insubordination (that means disobeying your supervisor in a serious matter)
- Breach of employer’s rules that are reasonable and consistently enforced by the employer
- Persistent absences and lateness from work without medical or other good reason
- Sexual harassment
- Incapacity to perform work:
- Serious incompetence
- Permanent illness or injury that cannot be accommodated by the employer without undue hardship, and is likely to continue indefinitely
- Your employer is not entitled to fire a worker without proper notice because:
- He feels like it
- He has no reason
- He has not given the worker an opportunity to improve
- He has a personality conflict
- Times are bad or there’s not enough work
- An employer cannot lay you off for an indefinite period without notice or paying your wages.
- In the experience of Community Advocacy & Legal Centre, most employees are let go because the employer develops a dislike for the employee. He may feel the employee doesn’t try hard enough, or has the wrong attitude. An employer cannot do this without notifying the employee about what he doesn’t like, and giving the employee a reasonable chance to improve. The employer fails to do this in almost all cases.
Whistleblower – Wrongful Termination
Whistle blowing has gotten a lot of attention in recent years due to the popularity of movies like “The Informant” starring Matt Damon, and “The Insider” starring Russell Crowe. But anyone can be a whistleblower–and the law states that it is illegal to fire an employee, or to engage in retaliation against an employee, for whistle blowing. Any person who “interferes” with the livelihood of an employee, who has provided information to legal authorities regarding alleged illegal activity of their employer, is subject to up to 10 years in prison and up to $250,000 in fines.
People who have suffered a job loss or layoff are often shocked and panicked. However, there are usually benefits available to those individuals who have lost their jobs due to a layoff, such as unemployment compensation, and in some cases other federal and state benefits. For employees who quit their jobs, help is usually not available, which means some employees suffer in miserable jobs until they can’t take it anymore and quit.
Unfortunately, in some situations, an employer may make the working environment purposely miserable in hopes that an employee will quit. An employer may want an employee to leave the workplace, but may not feel comfortable firing the employee or laying him or her off. There could be a lot of reasons the employer would rather the employee quit than be fired – maybe the employee has a contract that prevents the employer from terminating him or her. Maybe the employer doesn’t wish for the employee to get unemployment compensation, fearing that would cause the unemployment compensation insurance rates to increase, or their rating to decrease. In those cases, the employer may purposely decide to make the job so intolerable that the employee chooses to quit. In that situation, a “constructive discharge” may have occurred. If an employee can show that a constructive discharge has occurred, the employee may be eligible for back pay and benefits, as well as compensation for legal expenses and damages.
What earnings have you lost because you were fired? This element of damages includes the pay you would have received if your employer had not fired you, as well as any earned and unpaid wages, overtime, or other compensation the employer has withheld.
However, this amount is reduced by any money you earned after being terminated. If you get re-hired at the same or a higher rate of pay at some point after the termination, you won’t have any more lost pay as of the date of re-hire. If you get re-hired at a lower rate of pay, you will continue to have lost pay damages, equal to the difference between what your old job paid and what you are earning at your new job. For example, if you are out of work for one month, you count that full month of lost pay at the former pay rate. If you get a new job but are paid $1,000 per month less than at the former job, your lost pay damages continue to add up at the rate of $1,000 per month. Lost bonuses may also be a part of this element of damages.