Fired in California? How to Tell If Your Firing Broke the Law

California Labor Code section 2922 says a job with no set term may be ended "at the will of either party." You may quit at any time, and your employer may generally let you go at any time, with or without a good reason.

What at-will usually allows. These can be painful, but they are usually not illegal by themselves:

• Being fired by a boss who doesn't like you, or who plays favorites
• Being fired for performance, attendance, or a broken rule, even if you disagree with the call
• Being fired without a warning, or without being told why

Guidance from the U.S. Equal Employment Opportunity Commission (EEOC) says a business decision is not discriminatory just because it looks unwise or turns out to be a mistake. The law looks at why you were fired, not whether it was fair.

Where at-will stops. At-will doesn't make an illegal reason legal. If a real reason for the firing was one the law forbids, the firing may be illegal even if your employer gave no reason, or gave a different one.

Contracts can change the picture. If you have a written contract for a set period of time, a different rule generally applies: Labor Code section 2924 lists grounds for ending that kind of job early, like a willful breach of duty or habitual neglect of duty. A union contract or a written promise about how you may be fired may also matter.

1. Who you are (discrimination). California's civil rights law makes it illegal for a covered employer to fire someone because of:

• Race, color, ancestry, or national origin
• Religion or creed
• Age (40 and over)
• Physical or mental disability, or a medical condition
• Sex or gender, including pregnancy, childbirth, breastfeeding, or related conditions
• Sexual orientation, gender identity, or gender expression
• Genetic information, marital status, military or veteran status, or reproductive health decisionmaking

These rules generally apply to employers with five or more employees.

2. Speaking up (retaliation). Firing someone because they complained about harassment, discrimination, unpaid wages, or safety, or took part in an investigation, may be illegal retaliation. Retaliation has its own guide in this series, which goes deeper.

3. Reporting something illegal (whistleblowing). California's whistleblower law, Labor Code section 1102.5, protects an employee who reports what they have reasonable cause to believe is a violation of a law or regulation, to a government agency, a supervisor, or someone at work who can investigate or fix it, even if reporting is part of the job.

4. Refusing to break the law. The same law protects an employee who refuses to take part in an activity that would violate a law, rule, or regulation. The Civil Rights Department also gives the example of firing someone for refusing to obey an order they reasonably believe is discriminatory.

5. Taking protected leave or time off. That includes family and medical leave, pregnancy disability leave, paid sick days, and jury duty. The next section goes deeper.

6. Other protected rights. For example, an employer may not fire an employee for telling others how much they are paid.

Protected leave.

• Family and medical leave (CFRA). Employers with five or more employees generally must allow an eligible employee up to 12 workweeks of leave in a 12-month period, for their own serious health condition, to care for certain family members, or to bond with a new child. You generally need more than 12 months of service and 1,250 hours in the previous 12 months. The leave comes with a guarantee of the same or a comparable job, and firing someone for using it may be illegal.
• Pregnancy disability leave. Employers with five or more employees must provide up to four months of leave for an employee disabled by pregnancy, childbirth, or a related condition, with no minimum hours or time on the job.
• Paid sick days. An employer may not fire or punish an employee for using, or trying to use, accrued paid sick days.
• Jury duty. An employer may not fire an employee for serving on a jury, if the employee gave reasonable notice first.

Disability and accommodation. For covered employers, it may be illegal to fail to make a reasonable accommodation for an employee's known disability, to skip a timely, good faith "interactive process" (a real back-and-forth about what might work) after an accommodation request, or to retaliate against someone for asking, whether or not the request was granted.

Time off can be the accommodation. The Civil Rights Department says an employee whose illness qualifies as a disability is generally entitled to leave or time off as a reasonable accommodation. A cold or the flu usually doesn't qualify; a broken bone or pneumonia can, when it limits a major life activity.

What is usually not illegal. The law does not require an employer to keep an employee who, because of a disability, is unable to perform the job's essential duties even with reasonable accommodation, or only in a way that would endanger health or safety. Accommodations that would cause "undue hardship" aren't required either. And leave doesn't protect a job from a decision that truly had nothing to do with it.

Lawyers often call a cover-story reason a "pretext." EEOC guidance says an explanation loses credibility when the facts don't support it, or when it is unduly vague, looks after-the-fact, or shifts, and that departing from the employer's own policy or past practice can support an inference of a discriminatory motive. In real life, that often looks like this:

• The reason changed. "Budget cuts" in the meeting, "performance" in the letter, and "misconduct" when the company later answers an agency or EDD.
• The paper trail starts late. Years of good reviews, then write-ups or a performance plan that begin only after you complained, took leave, disclosed a medical condition, or announced a pregnancy.
• Documents written around the decision. Memos dated right before or after the firing, describing problems no one raised at the time.
• Skipped steps. The handbook or past practice calls for warnings or a chance to improve, and those steps were skipped for you but not for others.
• Vague or unsupported reasons. "Not a good fit" or "attitude," with no examples, or a "performance" firing when your numbers matched those of people who kept their jobs.
• The replacement. A "position eliminated" firing, then someone new doing the same job.
• Comments along the way. Remarks about your age ("we need fresh energy"), pregnancy, leave, accent, or complaint. The EEOC notes that comments matter more the closer they are, in time and subject, to the decision.

None of these proves anything by itself. Employers are allowed to document real problems, and the EEOC notes that following a consistently applied, nondiscriminatory policy supports the employer. The question is whether the record reflects real problems, or was built to support a decision already made.

Collect the paperwork now. Keep your termination notice (EDD tells employers they must immediately give written notice to employees who are fired or laid off). Request your personnel file and payroll records in writing, and do it early: the personnel file right generally pauses while a lawsuit about a personnel matter is pending.

Coworkers used for this kind of comparison are often called "comparators." The EEOC's guidance explains that if similarly situated people outside your group were treated better, that tends to show the stated reason wasn't the real one. It works the other way too: consistent treatment of everyone in the same situation supports the employer. The EEOC also says this evidence is not always required, and that deciding who is similarly situated should not rest on unduly restrictive standards.

A comparison is usually strongest when the other person:

• Had the same manager or decision-maker, and a similar job under the same rules
• Did something similar, about as serious and as often, around the same time
• Is outside your protected group (for example, younger or a different race), or didn't complain or take leave
• Got a lighter outcome, like a warning, or nothing at all

What usually makes a weak comparison:

• Someone with a different job, different rules, or a different boss
• Conduct that was much less serious, or happened once when yours happened several times
• A general sense that "everyone does it," without names or examples

You probably don't know exactly how others were disciplined. Write down what you do know: names, job titles, their manager, what they did, and what happened. If a lawsuit is filed, each side can generally request relevant records from the other; this is called discovery.

What usually points to a real layoff: a department or location closed, many people were let go using criteria set before anyone was chosen, and the jobs weren't refilled.

What may raise questions:

• You were the only one, or one of very few, let go
• Most of the people chosen share a protected trait, like being over 40, or had recently taken leave or complained
• The criteria were vague ("future fit"), seem written after names were picked, or were applied to you differently
• Someone was hired or moved into a job with nearly the same duties soon after
• Your job was "eliminated," but your work was simply handed to someone else

Salary-based cuts and age. California's Legislature has declared that using salary as the basis for deciding who gets let go may be found to be age discrimination if it hurts older workers as a group.

Large layoffs have notice rules. California's WARN Act generally requires 60 days' written notice to affected employees and certain agencies before a mass layoff, relocation, or closing at a covered location: one with 75 or more people now or in the past 12 months. A mass layoff means 50 or more employees laid off within 30 days.

Group layoffs at 40 and over. If you are asked to sign a release in a group layoff, the EEOC says the employer must tell you in writing about the group from which people were chosen, and give you at least 45 days to decide.

Your final paycheck.

• Due right away. When an employer fires an employee, wages earned and unpaid are due immediately, generally at the place where you were let go. The Labor Commissioner treats a layoff the same way. A few industries have special timing rules.
• Vacation counts. Earned, unused vacation must generally be paid at your final rate of pay. The Labor Commissioner says it is not forfeited when the job ends, whatever the reason, and applies the same rules to most "paid time off" plans usable for vacation.
• Sick days usually aren't paid out, unless your employer's policy provides for it.
• No release required for wages owed. An employer may not require you to sign a release to get wages already owed. Even in a dispute, it generally must pay, without conditions, the part it agrees is owed.
• Late final pay can cost the employer. If an employer willfully pays final wages late, it may owe a "waiting time penalty" of your daily pay for each day late, up to 30 days.

If you gave notice and were told to leave right away, the Labor Commissioner treats that as a discharge, so all earned wages are due immediately.

Unemployment.

• EDD says benefits are for eligible workers who lost their job through no fault of their own, and that even if you were fired, you may still qualify. There is no penalty for applying.
• If you were fired, EDD will check your eligibility, usually by questionnaire or phone interview. EDD says that if you are fired, your employer must prove there was misconduct. California law presumes a worker was let go for reasons other than misconduct unless the employer gives EDD written facts to the contrary, though that presumption can be rebutted.
• Quitting is treated differently: EDD says that if you quit, you need to show you had a good reason.
• Answer EDD's questions honestly and keep copies of what you submit. What you tell EDD may later be compared with what your employer says.

Here is what California and federal law say about these agreements:

• Time to get advice. California law generally requires an employer offering a separation agreement to tell you that you have the right to consult an attorney, and to give you at least five business days to do so. You may sign sooner only if that is truly your own choice, not the result of misleading statements, a threat to pull the offer, or better terms for signing early.
• More time at 40 and over. Federal law generally gives workers 40 and over at least 21 days to consider a release of age claims (45 days in a group layoff), seven days after signing to change their mind, and written advice to consult an attorney.
• The release. Most agreements include a general release of claims, which is generally allowed if otherwise lawful. As the EEOC puts it, you get money or benefits in exchange for signing away your right to bring certain legal claims.
• Speaking about unlawful acts. California law generally makes it illegal for a separation agreement to bar you from disclosing information about unlawful acts in the workplace, like harassment or discrimination. The amount of the severance itself may be kept confidential.
• Rights that generally stay with you. The EEOC says an agreement generally may not take away your right to file a charge with the EEOC, though you may give up the right to recover money.
• Your final pay is not part of the deal. Wages you already earned, including vacation, are owed whether or not you sign.

Ask before you sign: What claims am I giving up? Is the payment more than I'm already owed? Does it cover health coverage or a reference? Was I given the time the law requires?

If you think your firing may have been illegal, get the agreement reviewed before you sign.

Depending on the law involved, a wrongful termination case may lead to:

• Back pay and lost benefits, and in some cases front pay (future lost earnings)
• Getting your job back (reinstatement), in some cases
• Out-of-pocket expenses caused by the firing
• Money for emotional distress, and in some cases punitive damages
• Penalties, like a civil penalty of up to $10,000 per violation paid to the worker under California's whistleblower law, or a waiting time penalty for late final pay
• Attorney fees and costs paid by the employer, in some cases

What a case may be worth depends on how much pay you lost, how long it takes to find comparable work, how the firing affected you, and how strong the evidence is. Keep records of your job search and any new income.

A note on risk: under California's civil rights law, a worker who loses generally won't be ordered to pay the employer's attorney fees and costs unless the court finds the case was frivolous, unreasonable, or groundless.