When Unfair Termination is a Wrongful Termination in California

Anyone doing research on the web will find an endless number of articles about Wrongful Termination laws in an “at will” employment jurisdiction like California. Typically, the fact situations discuss and highlight civil rights violations, sexual harassment, retaliation, or breach of an employment contract as examples what constitutes a workable Wrongful Termination claim.

What I often hear from prospective clients are statements like “…terminating my employment was absolutely unfair”, “…the way I was treated was unfair, and I can prove it…”, or “…I must have some legal right to expect some fairness and good faith from my employer…” in presenting their termination story that doesn’t involve a civil rights violation or a written contract claim. 

Can a Wrongful Termination claim be brought (in California) by a former "at will" employee against an employer because what the employer did was UNFAIR? 

YES!  But it is a narrow yes.  

When Lack of Fairness Might be a Legal Claim

Let’s look at a couple of examples: 

The Judicial Council of California Civil Jury Instructions recognize a Breach of Implied Covenant of Good Faith and Fair Dealing as a cause of action that will support a finding of a Wrongful Termination.  Sounds pretty good, but the elements of the claim that have to be proven are complicated, and the application is somewhat narrow.   For example, one Court cited a hypothetical situation where an employee was promised a commission so many days after making a sale, but might be terminated immediately before the day the commission was due to paid.  That Court suggested terminating the employment relationship in such a case just to avoid paying the commission was unfair, lacked fair dealing, and could be a Wrongful Termination. So, California recognizes there is an implicit agreement in employment relationships that, to some degree, fairness is agreed to by both the employer and the employee. 

Another example might be the California Business & Professions Code in prohibiting employers from engaging in Unfair Business Practices.  This legal claim arises in many different scenarios; for example, an employer’s scheme of hiring employees as independent contractors to avoid paying payroll taxes, workers’ compensation premiums and funding unemployment insurance benefits.  Employers can be held liable for engaging in employment schemes that are UNFAIR and give them advantages over their competitors. 

But unfairness claims are limited, and the majority of time they act as companion claims attached to more threatening legal claims, like violations of public policy or statutory violations of wage and hour law.   

Is the Expectation of Fairness an Illusion?

No, experienced employment attorneys fight for fairness and employee rights utilizing a variety of legal claim strategies and demands.  Unfortunately, a lawsuit entitled “Unfair Termination” will not go very far in the courts of the State of California.  The best advice is trust the employment law attorney to ask you the right questions and develop a clearer picture on what your legal options might be.