Fear Wrongful Termination? Here’s What NOT to Do.
Tags: Wrongful Termination At Will Employment California Worker Rights Employment Lawyers
Fear Wrongful Termination? Here’s What NOT to Do.
The most common advice around wrongful termination tends to focus on what an employee should do to avoid wrongful termination or what steps to take after suffering wrongful termination. In this blog, we take a different approach. We thought it important to provide a guideline of what a worker should not do if facing wrongful termination.
Overview of What Not to Do
If you are worried that you will be wrongfully terminated, there are certain actions you should avoid as they may potentially harm your case or give your employer a reason to justify your termination. One thing that workers need to keep in mind is that California is an at-will employment state. In short, this means employment can terminate for any reason.
Employees who are facing a reasonable threat of wrongful termination should not give their employers a justifiable reason to terminate the worker. Here are some things that a worker should NOT do:
- Do not quit without a plan: Resigning from your job before you have a plan in place can make it more difficult to prove that you were wrongfully terminated.
- Do not refuse to follow company policies: Even if you believe that your employer is acting unlawfully, it is important to continue to follow company policies and procedures. Refusing to do so may give your employer a reason to terminate your employment.
- Do not engage in misconduct: Avoid engaging in any behavior that may be considered misconduct, such as stealing, harassing others, or using company resources for personal gain. This can give your employer a legitimate reason to terminate your employment.
- Do not discuss your concerns with coworkers: While it may be tempting to discuss your concerns with your coworkers, it is important to keep your concerns private. Sharing your concerns with others may result in your employer finding out and using it as a reason to terminate your employment.
- Do not make threats or become hostile: Avoid making threats or engaging in hostile behavior towards your employer or coworkers. This can give your employer a reason to terminate your employment and may even result in legal consequences.
We will address of each of these in more detail below. While some points, such as don’t engage in misconduct, may seem obvious, the truth is that life can be more complicated. It may not be as easy as it seems to avoid misconduct or taking any of the steps above.
California Is an At-Will Employment State
In California, like most states in the United States, employment is considered to be "at-will." This means that unless an employee has a contract that specifies otherwise, an employer may terminate the employee's employment at any time, for any reason, or for no reason at all, as long as the reason for termination is not illegal, discriminatory or retaliatory.
Likewise, employees in California can also quit their job at any time, for any reason or no reason, without having to provide their employer with a reason for their resignation.
And by the phrase “any reason,” we actually mean any reason. This is the case even if the reason is a total and complete lie that everyone knows—worker and employer—is a total fabrication. That lie can allow an employer to justify termination of employment. While this sounds like a gigantic loophole (and it is), it makes more sense when one considers the fact that the worker has the exact same power. The worker can quit for any reason, including an obvious lie, and the employer has no recourse.
But it is important to note that while employers in California have broad discretion to terminate an employee's employment, there are certain exceptions to the at-will doctrine. For example, California law prohibits employers from terminating an employee in retaliation for certain protected activities, such as filing a complaint of discrimination, harassment or unsafe working conditions. Employers also cannot terminate employees based on characteristics protected by law, such as race, gender, age, national origin, religion, disability, or sexual orientation.
Being an at-will employment state means that employers in California generally have the right to terminate employees at any time and for any reason, as long as the reason is not illegal, discriminatory, or retaliatory. Employees, on the other hand, also have the right to resign from their job at any time without providing their employer with a reason.
Do Not Quit Without a Plan
If you are worried that you will be wrongfully terminated, quitting your job without a plan can make it more difficult to prove that you were wrongfully terminated. If you resign, you may lose the opportunity to take legal action against your employer and seek compensation for any damages you may have suffered as a result of your termination. (Please look for our blog on “Constructive Wrongful Termination.”)
By quitting your job before you have a plan in place, you may also lose out on certain benefits that you would have been entitled to if you had been terminated by your employer. For example, if you are terminated, you may be entitled to unemployment benefits, severance pay, or other forms of compensation. However, if you quit, you may not be eligible for these benefits.
Furthermore, quitting without a plan can make it more difficult for you to find a new job. Potential employers may ask why you left your previous job, and quitting without a plan may raise red flags and make you appear unreliable. As a practical matter, job placement professionals will always advise people that job candidates generally appear more attractive to employers when the candidate is currently employed.
As much as the worker may fear termination, if a worker quits without a plan then the worker has immediately lost wages to pay rent, buy groceries, fill their gas tank, etc. The longer that unemployment period lasts, the further one may fall behind in bills. Workers who contemplate legal action to recover damages following a wrongful termination or constructive wrongful termination should always manage their finances as if the case does not exist.
Therefore, if you are worried that you will be wrongfully terminated, it is important to stay employed while you seek legal advice and develop a plan to protect your rights. You should consult with an employment lawyer, document any evidence of misconduct or discriminatory behavior by your employer, and gather information about your legal options. This will help you make informed decisions about your employment situation and protect your rights if you are ultimately terminated.
Continue to Follow Company Policies
If you fear wrongful termination, refusing to follow company policies can give your employer a legitimate reason to terminate your employment. Remember, California is an at-will state and even false reasons for termination may be enough to provide a defense theory. Even if you believe that your employer is acting unlawfully or unethically, it is important to continue to follow company policies and procedures, unless they require you to engage in illegal or unethical behavior.
By refusing to follow company policies, you may be seen as insubordinate, which can lead to disciplinary action or termination. Additionally, refusing to follow company policies may undermine your credibility if you later decide to take legal action against your employer for wrongful termination. Your employer could argue that your termination was justified because you were not following company policies.
It is important to note that if you are being asked to engage in illegal or unethical behavior, you should raise your concerns with your employer or a higher authority in the company. You may also want to consult with an employment lawyer or file a complaint with the appropriate government agency, depending on the nature of the misconduct.
In any case, if you are concerned about potential wrongful termination, it is important to document any evidence of misconduct or discriminatory behavior by your employer, consult with an employment lawyer, and develop a plan to protect your rights. Following company policies and procedures is a crucial part of this plan, as it can help to protect your employment status and provide evidence of your compliance with company policies in the event of a dispute.
Do Not Engage in Conduct that You Believe May Be Wrongful
The power that employers have over workers can be substantial and some workers may be placed in compromising positions. If you worry that your employer is asking you to do something illegal, you would not be the first employee to have this experience. Nor would you be the first employee that an employer has set-up by ordering the employee to do something illegal.
Nonetheless, the events leading up to any wrongful termination can often trigger strong emotions. It can be very tempting to want to take out those emotions by doing something out of character. But engaging in wrongful conduct can give your employer a legitimate reason to terminate your employment. Wrongful conduct includes any behavior that violates company policies, ethical standards, or the law, such as stealing, harassing others, or using company resources for personal gain.
Engaging in wrongful conduct can not only lead to disciplinary action or termination but can also undermine your credibility if you later decide to take legal action against your employer for wrongful termination. Your employer could argue that your termination was justified because you engaged in wrongful conduct.
Furthermore, engaging in wrongful conduct can harm your professional reputation and future job prospects. Employers may conduct background checks or request references from your previous employers, and any evidence of misconduct could negatively impact your ability to find future employment.
If you are concerned about potential wrongful termination, it is important to maintain a professional and ethical demeanor at all times. Document any evidence of misconduct or discriminatory behavior by your employer, consult with an employment lawyer, and develop a plan to protect your rights.
In some cases, if you believe that your employer is engaging in illegal or unethical behavior, you may be protected under whistleblower laws, which protect employees who report violations of the law or ethical standards. However, it is important to consult with an employment lawyer before taking any action to ensure that you are protected under these laws and that you follow the appropriate procedures for reporting misconduct.
Do Not Discuss With Co-Workers
We fully understand that this advice falls well within the “easier said than done” category. Please understand that we also recognize that this advice may not even be practical in your situation. But even if that is the case, you should keep your discussions at a minimum and assume that you will likely have to justify those discussions in a more open, public forum. In this regard, understand that even with people you trust you should always know that “anything you say can and will be used against you.” This is true even if the co-worker wants to keep your information confidential. At some point, the co-worker may be forced to disclose your discussions.
If a worker fears wrongful termination, discussing their concerns with co-workers can be risky and potentially detrimental to their situation. While it may seem helpful to confide in co-workers who are experiencing similar issues, discussing your concerns with them can create a negative atmosphere in the workplace and potentially lead to rumors or gossip that can harm your professional reputation.
Furthermore, discussing your concerns with co-workers can undermine your legal position if you decide to take legal action against your employer. Your employer may argue that you were terminated for causing unrest or creating a hostile work environment by discussing your concerns with co-workers.
It is important to remember that discussions about employment concerns are best kept confidential, and it is often better to speak with an employment lawyer or human resources representative. An employment lawyer can provide guidance on your legal options and help you develop a strategy to protect your rights. Human resources may also be able to address your concerns and help you find a resolution to your situation without causing disruption or negative consequences.
Ultimately, if you fear wrongful termination, it is important to take appropriate measures to protect your rights, but it is best to do so in a way that is respectful and professional, without creating unnecessary conflict or tension in the workplace.
Do Not Make Threats or Become Hostile
This is another bit of advice that should be obvious. But because of the emotionally charged nature of wrongful termination, tempers can flare, words can be exchanged, and the next thing the worker knows, he or she has been baited into saying something that will hurt their case.
If a worker fears being terminated wrongfully, it is important that they do not make threats or become hostile towards their employer or colleagues. Such behavior can damage the worker's professional reputation and may even lead to disciplinary action or termination.
Making threats or becoming hostile can also harm the worker's legal position if they decide to take legal action against their employer for wrongful termination. The employer may argue that the worker's behavior was the reason for their termination, rather than any illegal or discriminatory action on the employer's part.
In addition, making threats or becoming hostile can create a hostile work environment for other employees, which is against company policy and can lead to further disciplinary action or termination.
Instead, it is important for the worker to remain calm and professional when addressing their concerns with their employer. They should document any evidence of misconduct or discriminatory behavior by their employer, consult with an employment lawyer, and develop a plan to protect their rights.
If the worker believes that they are being retaliated against for raising concerns about their employment or their employer's behavior, they may be protected under whistleblower laws. However, it is important to follow the appropriate procedures for reporting misconduct and to seek legal advice before taking any action.
Ultimately, if a worker fears being terminated wrongfully, they should take appropriate measures to protect their rights, but they should do so in a way that is respectful and professional, without creating unnecessary conflict or tension in the workplace.
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”).