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In addition to claims for wrongful termination, employees often add other claims to a wrongful termination lawsuit.
These claims can include:
Your best defense against such claims is an ongoing proactive approach that includes well-articulated personnel policies and procedures that are consistent with California and federal labor laws. Apply these policies and procedures consistently and fairly.
Before terminating an employee, answer the questions on the Termination Decision Checklist. The checklist alerts you to the possible negative repercussions that could follow termination. If termination is in order, use the Termination Checklist to assist you in the process.
As one employer discovered the hard way, firing a long-term employee with a history of positive performance reviews is an excellent way to get sued for age discrimination, wrongful termination and retaliation — especially if the decision to fire the employee is based on poorly documented performance issues.
Much of the employer’s evidence suggested that the errors attributed to the employee were unacceptably grave because they implicated patient safety. Yet, the appellate court found no attempt by the employer to quantify either the number or potential seriousness of mistakes committed by other persons performing duties similar to the employee’s, or to otherwise identify anything like a quantitative standard to which the employee’s performance might be compared.1
The only performance benchmark put forth by the hospital was a performance evaluation form which indicated that errors of the type attributed to the employee would be acceptable at a rate of “less than one per day.”
The hospital presented no evidence that the employee committed errors with anything approaching a daily or even weekly frequency. Using the employer’s own performance benchmark, there was no support for the trial court’s finding that “several mistakes on menus” over a period of four or five months supports a finding of unsatisfactory performance.
The appellate court concluded that since the employee had a long history of satisfactory performance, a jury could find that the list of supposed deficiencies had more to do with a new supervisor’s attitude toward the employee than with the employee’s actual performance.
In another case, a large employer made a common mistake that lands employers in hot water: The inconsistent application of policies and close timing of adverse personnel actions in relation to protected activity are key factors that will support an employee’s discrimination case.2
The case involved an employee who was laid off not long after revealing that she had a heart condition. Yet, the organization didn’t follow its own layoff policies which required it to offer her the opportunity to be reassigned or transfer and also, if laid off, to give her a right to recall.
The court allowed the employee’s claim for disability discrimination to proceed.
In finding that the employer’s claimed reason for the layoff might have been untrue and actually a pretext for disability discrimination, the court relied on several key facts, including:
Remember: Follow your policies consistently. As this case illustrates, failing to do so can call into question your reasons for making certain employment decisions. When terminating an employee, call it what it is. If you are ending an employee’s employment because of performance issues, don’t call it a layoff or say you are eliminating the employee’s position.
1. Cheal v. El Camino Hospital, 223 Cal. App. 4th 736 (2014)
2. Deborah Moore v. The Regents of the University of Calif., 248 Cal. App. 4th 216 (2016)