How Employers Retaliate After Firing You

There two main ways that an employer may retaliate against a terminated employee. The first one is challenging the terminated employee’s unemployment benefits application by trying to argue that the employee was terminated for misconduct. In many, if not most, cases that employee should be able to prevail, showing during the application process or at the unemployment benefits appeal hearing that the employer cannot meet the burden of proving that the employee was terminated for misconduct, and therefore the unemployment benefits should be awarded.

The second common way in which employers retaliate is by giving negative references to the terminated employee’s prospective employers. While merely suspecting that the reason you can’t get a job is because of the negative references from one of your previous employers, it is really worth make sure that the suspected employer does not engage in that kind of unethical and generally unlawful practice. The best way to start is to user the service of one of the major reference check agencies. Just google “reference check” and you will find a number of companies who, for a modest fee, will call your former employer, pretending that they are your prospective employer. The agency representative will ask all the right questions and then will let you know exactly what the employer said about you. If the employer doesn’t say anything bad about you, then you will know that they are most likely not the reason you weren’t able to get job. If they are saying something bad about you, then you can consider what legal steps you can take to make them stop defaming you.

Not Renewing an Employment Contract is Not a Wrongful Termination

Recently, the Court of Appeal reiterated in Touchstone Television Productions v Superior Court (2012), that not renewing an employee’s contract cannot be considered a wrongful termination, because, among other reasons, employment for a fixed period of time is terminated automatically at the time that contract expires. The Court further stated that even if one of the reasons for not renewing the contract was the fact that the plaintiff complained about unsafe working conditions does not change the fact that she was not terminated, and thus no wrongful termination claim can be made.

Plaintiff could still sue for damages for discrimination and retaliation in violation of Cal. Labor Code 6310 which prohibits discriminating or retaliating against an employee for complaining about unsafe working conditions.

Proving Workplace Retaliation Claim

One of the most common employment and wrongful termination related claims that are brought by employees in California is a claim for workplace retaliation. Many of my colleagues and a few employers and HR managers that I know believe that it’s practically natural for employers to want to take action against an employee who “stirs things up” at work, thereby threatening his superiors’ status and job security among other things, and being otherwise “disruptive.” In many ways retaliation is motivate by a very powerful human emotion – revenge. It takes a lot of maturity, self control, as well as knowledge of the law for a manager to avoid engaging in retaliation.

Retaliation, however, is not easy to prove. Like in many other employment discrimination and wrongful termination cases, when it comes to retaliation, proving the employer’s animosity or retaliatory motive is critical. In these kinds of cases, the devil is in the detail. One e-mails, one voicemail, one text message, or IM chat or Facebook post can make or break the case.

In the future articles, I will discuss different kinds of evidence the both employee and employers use, based on significant past California cases, addressing retaliation, that are used by both sides to prove and disprove retaliation allegations.

One of the things that make employment law both interesting and stressful is the fact that it’s constantly evolving. New cases are coming out all the time, some of which seem to be hard to reconcile with other for several reason, one of which is the given judges’ personal views and predispositions on giving weight to various kinds of evidence of the employer’s wrongful conduct. Retaliation is not an exception to this and it is one of the more evolving areas of employment and wrongful termination law.

In the future articles, I will discuss different kinds of evidence the both employee and employers use, based on significant past California cases, addressing retaliation, that are used by both sides to prove and disprove retaliation allegations.