Worried You're About to Be Wrongfully Terminated? Read this.

What should you do if you fear you are about to be terminated wrongfully?

California is an "at-will" state, meaning that employers can terminate employees for any reason--even a lie--as long as the reason isn't based on the worker's identity (age, race, ethnicity, sexual orientation, gender, etc.) or protected activity (i.e., demanding full pay or engaging in union activities).

If  workers feel they are about to be terminated wrongfully, there are a few steps they can take to protect themselves. These steps are as follows and each step is explained in more detail below: 

Review company policies and employment contracts: Workers should review their company's policies and their employment contract to understand their rights and the procedures for termination. This can help them determine whether they are being terminated wrongfully or not.

Document EVERYTHING!!!!: It's important for workers to document everything related to their employment, including performance reviews, emails, and other communication with their employer. This documentation can be useful later if there is a dispute over the termination.

Seek legal advice: Workers who believe they are being wrongfully terminated should seek legal advice from an employment lawyer. An experienced lawyer can review the worker's situation and advise them on the best course of action.

Stay professional: Even if a worker feels they are being terminated wrongfully, they should remain professional and avoid any behavior that could be seen as insubordinate or hostile. This can help them maintain their reputation and potentially negotiate a better outcome.

Negotiate a severance package: If a worker believes they are being terminated wrongfully, they may be able to negotiate a severance package with their employer. This can include compensation and other benefits in exchange for agreeing not to pursue legal action.

Reviewing Company Policies and Employment Contracts:

When reviewing company policies and employment contracts, an employee who suspects wrongful termination should look for the following:

Grounds for termination: Check if the company policy or employment contract clearly states the grounds for termination. If the company is terminating an employee without a clear reason, it could be a sign of wrongful termination.

Procedures for termination: Review the company policy or employment contract to understand the procedures that the company must follow before terminating an employee. If the company does not follow these procedures, it could be a sign of wrongful termination.

Discrimination policies: Check if the company policy or employment contract includes policies related to discrimination, harassment, or retaliation. If the employee suspects that they are being terminated due to discriminatory reasons, they can use these policies to support their case.

Notice period and severance pay: Check if the employment contract includes a notice period and severance pay in case of termination. If the company is not following these terms, the employee may be entitled to compensation.

Dispute resolution: Review the company policy or employment contract to understand the process for dispute resolution. If the company is not following this process, the employee can use it to support their case.

If I fear I will be wrongfully terminated, how should I document my work experience and what should I document?

If you fear you will be wrongfully terminated, it is important to start documenting your work experience to protect yourself. It is important that you start documenting events before you are terminated. And, if you can muster the courage to do so, send an email to your supervisor stating that you are concerned you are being terminated wrongfully.

Here are some tips on how to document your work experience:

Use a neutral tone and avoid hyperbole in your written narratives or notes: being terminated, whether wrongfully or not, is always a traumatic experience. Many employees feel a profound sense of fear, dread, helplessness, and anger. It can be very tempting for employees to write narratives and make records with those emotions clouding their narrative. We have seen emotionally distressed employees write notes calling their manager’s names and making other ugly statements—none of which we want to repeat here. Instead, simply describe facts and events in a neutral tone. Be sure to keep a record using the “who, what, where, when, how and why” that we were taught in grade school.

Record how the potential wrongful termination affects you: This is one of the most critical steps that workers fail to perform. We will write a more detailed explanation of this topic and how it affects the worker’s recover at a later time. But for now know that there are two methods this can take place: 1) through therapy sessions; and 2) through your own narrative, diary, or journal. You should record the effects on your sleep, mood, relationships, and work performance. Ideally, this would be done on daily basis.

Keep a record of your job duties and responsibilities: Document your job duties and responsibilities in detail, including any changes that have been made to your job description. This will help you demonstrate your value to the company and refute any false claims made by your employer. Keep accurate records of the dates/times that your job duties and responsibilities may have changed. Record who made the decision to change your job duties and responsibilities and how you were informed of those changes. Confirm those changes in writing either via email or text message with that person. Ask that person why those changes are made and record the answer.

Maintain a record of your performance: Keep a record of your performance, including any positive feedback, awards, or recognition you have received. This can help you demonstrate that you have been meeting or exceeding expectations and refute any claims of poor performance.

Document any communication with your employer: Keep a record of any communication with your employer, including emails, memos, and performance reviews. This can help you demonstrate any discriminatory or retaliatory behavior by your employer.

Keep a record of any witnesses: If there are any witnesses to your job performance or any discriminatory or retaliatory behavior by your employer, document their contact information and a brief summary of what they witnessed. This can help you build a stronger case if you need to take legal action. Moreover, it is helpful to have the witness write what they witnessed to you either in email (ideal) or text message. Witnesses often flip—especially those who are still employed and reasonably concerned about losing their job. (After all, they’re witnessing you being wrongfully terminated; it’s reasonable for them to assume the same thing will happen to them.)

Maintain a timeline: Create a timeline of events, including any incidents that may have led to your fear of being wrongfully terminated. This can help you present a clear and organized case if you need to take legal action.

Keep a record of job applications: This step is not just critical after termination, it is a step the worker effectively has a duty to perform. Wrongfully terminated workers must seek new employment under the Mitigation of Damages doctrine, which as applied to employment cases dictates that the wrongfully terminated employee cannot simply sit back and wait for a large judgment or pretend that the worker was unable to find a new job. Moreover, workers who file wrongful termination cases should budget their life based on the potential for a damage award.

Seek Legal Advice

Ideally an employee should seek legal advice prior to being terminated. An employee who fears being terminated wrongfully can take several steps that may prevent termination or gather information to support the case.

Create a narrative of events leading up to termination: as mentioned above, workers should create  narrative of events at their work place that demonstrate the termination is based on unlawful reasons (i.e. identity or protected activity), as well as how the events leading up to termination and the termination effect the worker. An experienced employment attorney can help the worker to determine what events are most critical to document in order to ensure the best results for their case and perhaps prevent termination.

Express concerns about wrongful termination to supervisors and/or Human Resources: After consulting with an experienced employment attorney, a worker should take their concerns to their supervisor or human resources department. The worker should present the facts in a neutral tone that show a reasonable concern that wrongful termination is eminent. The worker should request a written response to those concerns and maintain that record. This is often a very intimidating step to take but it can be critically important after a case is filed.

Ensure that the employee receives all compensation at the time of termination: the worker should review all compensation that the worker receives. This includes the worker’s regular wages—be they hourly, piece rate, or salary. And it includes any bonuses, vacation pay, sick days, 401k contributions, pension contributions, stock options, or other perks. Labor Code, sections 201-203 require the employer to pay all outstanding wages owed to the worker immediately upon termination. If the employer fails to pay ALL wages, then the employee is entitled to a day’s wages for each day full payment is delayed. The total amount caps at 30 days’ pay.

This review of all compensation also helps the worker to provide critical information to the employment attorney for damages.

Be prepared to negotiate any severance agreement terms: know what your goals are before you leave and you will be better prepared to negotiate terms. Keep in mind that the severance agreement will almost certainly require you to sign a release of all claims—meaning that you cannot later file a wrongful termination case—so you are choosing a severance package over a potential recovery following litigation. But if you are familiar with your rights you will be better suited to gauge whether a severance offer is reasonable. More on this topic below.

Fully understand their rights with respect to unemployment insurance eligibility: Workers are entitled to unemployment insurance following termination. California’s unemployment appeals board is generally favorable to workers who are terminated and are more likely to award unemployment benefits than deny them. This is true even if a determination is initially made to deny those benefits. Workers can generally handle the unemployment appeals without an attorney’s assistance but some situations—such as constructive termination—would be more likely to succeed with an attorney’s assistance.

Stay Professional

If a worker is worried that wrongful termination is imminent, it can be challenging to stay professional and focused on their job responsibilities. However, it is important for the worker to remain professional and maintain a positive attitude, even in the face of uncertainty.

Here are some tips for staying professional in the face of possible wrongful termination:

Focus on your job responsibilities: The worker should stay focused on their job responsibilities and continue to perform their work to the best of their ability. This will help to demonstrate their value to the employer and maintain their professional reputation.

Stay positive and professional: The worker should remain positive and professional in their interactions with colleagues, supervisors, and clients. Avoid engaging in negative conversations or behaviors that could reflect poorly on them.

Be prepared: The worker should be prepared for the possibility of termination by keeping copies of important documents, such as performance evaluations and employment contracts, and preparing a list of contacts in case they need to reach out for references or job leads.

Seek support: The worker may want to seek support from friends, family, or a professional counselor to help them cope with the stress and uncertainty of the situation.

Know your rights: The worker should familiarize themselves with their legal rights and consult with an employment lawyer if they believe they are being treated unfairly or unlawfully.

Negotiate a Severance Package

When negotiating a severance agreement, a worker should consider several factors, including:

Terms of the agreement: The worker should carefully review the terms of the agreement and ensure that they understand all of the provisions. This includes the amount of severance pay, the duration of any benefits, and any conditions or restrictions attached to the agreement.

Legal rights: The worker should understand their legal rights in regards to severance pay, such as whether they are entitled to receive it under their employment contract or state law. They may also want to consult with an employment lawyer to ensure that their rights are protected and that they are not signing away any important legal claims.

Non-compete clauses: Some severance agreements may include non-compete clauses that restrict the worker's ability to work for a competitor or start a competing business. The worker should carefully consider the implications of any non-compete clauses and negotiate to ensure that they are fair and reasonable.

Future employment prospects: The worker should consider how the severance agreement may impact their future employment prospects. For example, if the agreement includes a non-disparagement clause, the worker may not be able to speak negatively about their former employer, which could make it more difficult to find a new job.

Tax implications: The worker should consider the tax implications of the severance pay and ensure that they are not being hit with an unexpectedly high tax bill.

Timing: The worker should consider the timing of the agreement and whether it is in their best interest to sign it immediately or negotiate for better terms.

In sum, the potential for being fired wrongfully can be frightening and severely distressing. But there are several things you can do to have some sense of control over the situation: maintain records, maintain a positive or at least a neutral attitudes, and seek advice from an experienced employment attorney. 

About Olsen Law Offices, APC

Olsen Law Offices specializes in employment litigation in all areas of employment law. Olsen Law Offices has extensive experience litigating matters concerning wrongful termination, retaliation, harassment and hostile work environment, work place defamation, gender discrimination, race discrimination, sexual orientation discrimination, and disability discrimination. Moreover, Olsen Law Offices has extensive experience in wage and hour cases as single-employee cases, class actions, and actions under the Private Attorneys General Act (“PAGA”).