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Wrongful Termination Explained By a Los Angeles, California Employment Law Attorney

Prepared By: Melissa C. Marsh, Los Angeles Employment Attorney
Written: March 2009

Not all employment terminations, even if unfair, constitute a wrongful termination under the California law. In California, wrongful termination is often difficult to prove because absent a written employment contract to the contrary, the employer-employee relationship is presumed to be "at will." An "at will" employment relationship basically means that both the employer and the employee can terminate the employment relationship at any time and for any reason (with or without cause) so long as it is not an illegal reason (e.g. discrimination or retaliation).

In California, an employee may bring a successful lawsuit claiming he or she was "wrongfully terminated" if the employee can prove the termination:

  1. was in breach of a written contract (offer of employment, employment agreement or employee policy);

  2. was in breach of an oral promise or reassurance of continued employment;

  3. violates public policy (e.g. retaliatory discharge); or

  4. violates a specific state or federal statute (e.g. discrimination - the termination was related to the employee's national origin, race, religion, age, disability, family or marital status, pregnancy, gender, or sexual orientation).

Retaliatory Discharge Equals Wrongful Termination.

Retaliatory discharge laws protect employees who are in an untenable situation, or who report unlawful or unsafe working conditions or other illegal behavior engaged in by the employer (Whistleblowing). An employee may bring a legitimate lawsuit for wrongful termination if the employee can prove the employer terminated the employee because the employee:

  • filed or participated in a wage claim, discrimination claim, harassment claim, workers compensation claim, unemployment compensation proceeding, Cal/OSHA proceeding, or complaint with the Labor Commissioner;

  • became subject to a single wage garnishment, child support order, or jury duty;

  • exercised his or her right to vote, to take family medical leave, to review their personnel file, or to ERISA benefits;

  • reported an illegal or unsafe workplace activity, or refused to perform dangerous work;

  • refused to commit an illegal act (e.g. perjury) ; or

  • performed a public obligation (jury duty).

Constructive Wrongful Termination.

Constructive wrongful termination occurs when the employee is not fired but quits because the conditions in the workplace have become so intolerable that the employee was effectively forced to leave. When any reasonable person would no longer be able to tolerate the workplace environment, then a person may quit and still seek damages for their lost wages.

This does not mean an employee can quit and sue after a simple incident of harassment or because some condition is less than perfect. Employees are expected to first use all of the available reporting mechanisms made available by their employer to at least attempt to resolve their employment issues before quitting. Failure to try and fix the situation before quitting will probably prevent an employee from recovering damages if a lawsuit is later commenced. If an employee has complained, requested relief, and nothing changes or actually escalates, then the employee may quit and still seek compensation for lost wages. All complaints and efforts to get relief from the conduct should be well documented.

Before terminating an Employee, the Employer Should Take Certain Precautions.

1. Address an employee's poor performance. Although an employer does not need to institute a progressive system of discipline, an employer should conduct a performance evaluation, explain what the employee needs to improve, and provide guidance on how performance can be improved.

2. Implement Standard Termination Procedures. Every employer should require exiting employees, whether they quit or are terminated, to go through an exit interview during which the employer can: (1) set forth the reasons the employee is being terminated, (2) arrange for the return of company property; (3) inform the employee about any continuing obligations the employee may have (e.g. confidentiality); (4) get the employee's immediate response to various questions that will be helpful in the event the employee later decides to sue; and if applicable (5) present the employee with a severance pay package in exchange for the employee's agreement not to sue.

3. Consider a Severance Pay Package. Although employers are not required to provide severance pay, even to long term employees, a severance pay package can be a useful tool in reducing the risk of an employee lawsuit. Even if the employer crosses every T and dots every I, the employer still may find him or herself taking a trip through the judicial system.

4. Final Paycheck. As soon as the exit interview is complete, the employer should also remit payment of the employee's final paycheck. If the employee provided notice, or if you are terminating the employee, the final paycheck is due immediately. If the employee quits with no notice, the final paycheck must be remitted within 72 hours.

If you would like the assistance of a Los Angeles, California employment lawyer to assist you with establishing proper termination procedures, or in bringing a wrongful termination claim, please call 818-849-5206 or Email Melissa C. Marsh.

California employment lawyer, Melissa C. Marsh, is based in Sherman Oaks and West Hollywood, and serves individuals and businesses throughout Los Angeles County, including: West Hollywood, Miracle Mile, Beverly Hills, Century City, Santa Monica, Burbank, North Hollywood, Valley Village, Toluca Lake, Studio City, Sherman Oaks, Van Nuys, Encino, and Woodland Hills.

© 2009 Melissa C. Marsh. All Rights Reserved.

If you have additional questions, or need specific legal advice tailored to your specific needs, please schedule a low cost Telephone Consultation.
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Disclaimer: The information presented on this web site was prepared by Melissa C. Marsh for general informational purposes only and does not constitute legal advice. The information provided in my articles and alerts should not be relied upon, or used as a substitute for professional legal advice from an attorney you retain to advise or represent you. Your use of this Internet site does not create an attorney- client relationship. Transmission of this article is not intended to create, and receipt of it does not constitute, an attorney-client relationship. All uses of the contents of this site, other than personal uses, are prohibited. You may print or email a copy of any information posted on this web site for your own personal, non-commercial, use, but you may not publish any of the articles or posts on this web site without the Express Written Permission of Melissa C. Marsh.

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Located in Los Angeles, California, the Law Office of Melissa C. Marsh handles business law and corporation law matters as a lawyer for clients throughout Los Angeles including Burbank, Sherman Oaks, Studio City, Valley Village, North Hollywood, Woodland Hills, Hollywood, West LA as well as Riverside County, San Fernando, Ventura County, and Santa Clarita. Attorney Melissa C. Marsh has considerable experience handling business matters both nationally and internationally. We routinely assist our clients with incorporation, forming a California corporation, forming a California llc, partnership, annual minutes, shareholder meetings, director meetings, getting a taxpayer ID number (EIN), buying a business, selling a business, commercial lease review, employee disputes, independent contractors, construction, and personal matters such as preparing a will, living trust, power of attorney, health care directive, and more.