Insights on Wrongful Termination from Gavin Kassel

Employers must know these facts before and after hiring your employees

Question 1.

Can you highlight some red flags that employees should be mindful of in regards to a possible wrongful termination case? How can a constructive dismissal come into play?

Most employees in California are classified as “at-will.” At-will employee may be terminated for no reason, or for an illogical or ridiculous reason, however, there employer may not terminate any employee (whether at-will or contractual) for an unlawful reason or a purpose that violates fundamental public policy.

Failure to take all reasonable steps to prevent discrimination and harassment from occurring is another unlawful employment practice under the FEHA. [Gov. Code, § 12940, subd. (k)]

The FEHA prohibits an employer from discriminating against any person for either: (1) opposing any employment practice forbidden under the act; or (2) filing a complaint, testifying, or assisting in any proceeding under the Act. [Gov. Code, § 12940, subd. (h)]

In a constructive discharge case, the employee bears the burden of proving that the employer either intentionally created or knowingly allowed working conditions that were so intolerable or intensified at the time of the employee’s resignation that a reasonable employer would realize that a reasonable person in the employee’s position would be compelled to resign. The conditions giving rise to the resignation must be sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job, to earn a income, and to assist his or her employer. The adversarial working conditions must be unusually serious or amount to a continuous pattern before the situation will be deemed intolerable. Isolated acts are generally insufficient to support a claim of constructive discharge, and poor performance ratings or demotions, even if supported by reductions in pay, will not normally, without additional facts, prompt a constructive discharge.

Question 2.

What are some things an employee should consider or be mindful of if they believe they are being discriminated against? How do disability and age discrimination differ from one another?

When an employee confronts an employer with accusations of disability discrimination, employers are likely to vigorously deny the claim, (even when there is strong evidence of discrimination) and may even retaliate against the employee by demoting hours, reducing rate of pay, and/or terminate the employees. Most likely, employers will claim that any attempt at a reasonable accommodation would be an undue burden on them. It is important that an employee immediately contact a qualified discrimination law attorney or contact the Department of Fair Employment Housing if he or she feels their employer has discriminated against them based upon a disability.

Question 3.

Do you have any case experience involving anything covered by the ADA or FMLA? What are some things for employees to keep in mind while they are on protected leave or returning to work with an accommodation? How about employers?

We mainly focus on California FEHA related claims, which does include discrimination based on disability and age. FEHA makes it an unlawful employment practice for an employer to refuse to hire or employ a person (or refuse to select him or her for a training program leading to employment), to prevent or discharge a person from employment, or to discriminate against a person in compensation or in terms, conditions, or privileges of employment because of any of the following [Gov. Code, § 12940, subd. (a)]:

• (1) race;

• (2) religious creed;

• (3) color;

• (4) national origin;

• (5) ancestry;

• (6) physical disability;

• (7) mental disability;

• (8) medical condition;

• (9) marital status;

• (10) sex; or

• (11) sexual orientation

FEHA also prohibits refusing to hire or employ, discharge, dismiss, reduce, suspend, or demote, an individual over the age of 40 on the ground of age, except where the law compels or provides for such action. [Gov. Code, § 12941] In addition, FEHA forbids employment discrimination based on pregnancy, childbirth, or related medical conditions [Gov. Code, § 12945] or on refusal, in prescribed circumstances, to grant requests for family care and medical leave. [Gov. Code, § 12945.2

To find Gavin Kassel

Website: www.skassellaw.com
Phone: 909 884 6451
Email: office@skassellaw.com