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Courts Expand an Employee's Right to Sue

May 14, 1987|JEFFREY S. KLEIN

Can you sue your boss if you get fired?

That's a question just about all former employees would probably like answered, especially if they believe they've lost their jobs for no good reason.

Yes, you can sue. In our judicial system, where the loser is generally not penalized for pursuing an unsuccessful lawsuit--unless it is truly frivolous--anybody can sue anyone else for just about any reason.

The important question is: Can you win? And, unfortunately, the answer to that question is not a simple one.

It has long been the legal rule that employers could not discipline employees based on specific discriminatory reasons, such as race, sex, age or national origin. In addition, employees who are covered by collective bargaining agreements that their unions have negotiated usually have grievance and arbitration procedures in place to review arbitrary disciplinary actions by the employer.

With those few exceptions, historically, employers had the unfettered right to discharge their employees "at will," with impunity, for any reason, good or bad. (The "at will" category applies to most employees, those who do not have an employment agreement saying they can be fired only for good cause.)

In fact, since 1872, California has had a law on the books that says an employment "may be terminated at the will of either party upon notice to the other."

However, for the past 30 years, the courts have been gradually eroding the "at will" doctrine so that there are more and more situations in which an employee can successfully sue his former employer for what has become known as wrongful discharge and collect not only back wages but even punitive damages in certain situations.

In a 1959 case, a union employee claimed he had been fired because he refused to perjure himself before a legislative committee. A California court decided that termination for that reason was improper because of the important public policy against perjury.

Since then, and especially in the 1980s, other cases in California and other states have expanded the potential legal liability for employers who fire their employees. The courts, not the state legislatures, have made it clear that an employee should not be fired for refusing to commit an unlawful act, for performing a public obligation--such as jury duty--or exercising his constitutional or legal rights--such as filing a worker's compensation claim.

In California, the courts have also ruled that there exists in the employment relationship something called an "implied covenant of good faith and fair dealing." This is a legal duty, one court said, that "like cases be treated alike . . . that the company, if it has rules and regulations, apply (them) to its employees as well as affording its employees their protection." In other words, the employer and employee must "deal openly and fairly with one another."

Other courts have said there may be an "implied promise" not to terminate an employee except for good cause. To decide if there is such a promise, a court may consider a company's own personnel policies and whether they were followed properly, the length of a person's employment, any assurances about job security given to the employee, lack of criticism of performance, basic fairness and other factors.

For a more detailed discussion of this area of law, call Tel Law at (714) 824-2300, and ask to listen to tape No. 248. Tel Law does not charge for the tape service, but you will have to pay for the toll call.

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