Crosner Legal is a preeminent employment law firm which specializes in representing employees in wrongful termination lawsuits. The address of our San Jose meeting location is 97 S Second St #178, San Jose, CA 95113. Our office has represented a multitude of employees residing in the greater San Jose, California area in lawsuits against their employers, ranging from individual wrongful termination lawsuits to class action cases for unpaid wages.
Having litigated many cases in the Santa Clara Superior Courts, Crosner Legal is very family. ar with the local civil procedures, rule, judges, and general court system in San Jose, CA.
What is wrongful termination?
Wrongful termination, wrongful dismissal, or wrongful discharge are terms in law used to describe a situation where an employee’s employment contract is terminated wrongfully by an employer. For a termination to be deemed wrongful, it must breach one or more terms in the employment contract, a rule/s or a statute provision in employment law.
The laws governing wrongful termination vary depending on the terms in individual employment contracts as well as the laws and policies in a given jurisdiction. For instance, the laws governing wrongful termination in San Jose may be different from the laws in other states in the US. As a result, you need a San Jose wrongful termination lawyer to handle a wrongful termination case in SAN JOSE.
What constitutes wrongful termination in San Jose?
Although the laws governing wrongful termination vary, the primary forms of dismissal are generally the same regardless of jurisdiction. Being terminated because of the following may constitute wrongful dismissal;
If your employer terminates your employment because of your race, religion, age, nationality, gender or sexual orientation (in some jurisdictions including SAN JOSE), such termination is deemed wrongful.
Your employer can’t dismiss you simply because you filed a discrimination case or participated in investigations that aren’t in their best interests, i.e., participating in investigations for discrimination. Retaliation is prohibited in civil rights law in the US.
Termination for being a whistleblower also qualifies as retaliation. An employee shouldn’t be fired for reporting an employer who has violated a law. The US has a whistleblower law that has over 20 statutes protecting employees who risk termination for reporting violations in workplaces. This law is applicable in the safety and health industry, airline industry, consumer product industry, commercial motor carrier industry, food safety industry, pipeline industry, nuclear industry, railroad, and maritime industries among other industries deemed “sensitive”.
Retaliation can also constitute any adverse actions against an employee because they have engaged in protected activity. Adverse actions include (but aren’t limited to);
- Laying off or firing
- Denying promotion or overtime
- Failing to rehire
- Denying benefits
- Harassment or intimidation
- Reducing pay
- Blacklisting (intentionally interfering with an employee’s ability to get future employment)
- Making threats
- Constructive discharge (employer making an employee’s working conditions intolerable to force a resignation)
III. Termination for refusing to engage in an illegal act/s
The law in most also protects employees who are fired because of refusing to break the law. For instance, an employer can’t fire an accountant who refuses to “cook” a company’s financials.
IV. Termination without following due procedure
The law also requires employers to follow their own company termination procedures, which are usually stated in the company policy or employee handbook. Employers must also follow laws applicable in that jurisdiction; otherwise, an employee may be justified to claim for wrongful dismissal.
What if there is no formal employment contract?
If an employee is terminated without there being a formal employment contract, such an eventuality doesn’t prevent an employee from launching a wrongful dismissal case. By there being an employment relationship, a de facto contract is assumed to exist in most jurisdictions, including California. Courts or tribunals are constituted to hear such cases. Once a dismissal is proven wrongful, a reinstatement of a dismissed employee is ordered and/or monetary compensation.
Wrongful termination for At-will employment
In the US, the concept of wrongful termination is determined by court decisions as well as state and federal laws given there is no distinct or singe wrongful termination law applying to the entire country.
All states apart from Montana are considered to have at-will employees at default, which means, employees who can be fired anytime without cause. However, employees usually enter into employment contracts limiting their employer’s ability to fire them without cause. Employees may also be union members, which comes with benefits such as defining disciplinary procedures and limits. Employees in the public sector enjoy civil service protections restricting wrongful termination. Civil rights laws, among other laws, also protect at-will employees from wrongful dismissal.
In case of termination, at-will employees have three main grounds for launching a wrongful termination claim.
Bad faith and unfair dealing: At-will employees can pursue wrongful termination cases if the cause of their termination is because of an employer acting in bad faith. For instance, an employer can’t terminate an employee to avoid paying them their rightful dues or benefits.
Public policy: It is also possible to argue in jurisdictions including San Jose that an employer’s reasons for dismissing you violate state public policy even if the employer doesn’t violate a statute. For example, if you are fired for failing to take actions that would violate the law or fired for reporting a violation to the authorities or exercising your rights as an employee, a court can allow such a claim.
Implied contract: The terms stipulated in employee manuals or handbooks can support a wrongful dismissal claim if an employer took actions contrary to those defined in a disciplinary process. An implied contract can be found restricting an employer’s ability to fire employees without cause.
Wrongful termination in violation of existing laws
As mentioned above, termination of employment is illegal if it is because of discrimination. Employers can’t fire employees belonging to groups which are protected by law from discrimination. Termination based on race, nationality, gender, sexual orientation, medical condition/s, disability, pregnancy or age is illegal according to US federal laws like the 1990 Americans with Disabilities Act, 1967 Age Discrimination Employment Act and Title 7 of the 1964 Civil Rights Act.
States like California have their own civil rights laws protecting workers from discrimination. One such law is the FEHA (Fair Employment & Housing Act).
Why is it important to hire a lawyer in a wrongful termination claim?
The first course of action when you believe you have been terminated wrongfully is to understand the statute of limitations applying to such cases.
There are rules that dictate the time it takes to initiate a lawsuit once you have been dismissed. In simple terms, time will not be on your side. Waiting to understand wrongful termination law and taking action on your own isn’t advisable. A wrongful termination claim can become ineligible for compensation if you wait too long. Furthermore, claims are complex, which is why you should seek the services of a wrongful termination attorney.
Wrongful dismissal claims usually have many technicalities besides timelines, i.e., you may be required to submit your claim to the EEOC (Equal Employment Opportunities Commission) before you can file a lawsuit. There are many other procedural issues you must be familiar with. Like any other complex legal matter, seeking the services of a lawyer is highly recommended. In this case, you should find a San Jose wrongful termination lawyer.
What if I am an at-will employee?
Since most employees in San Jose are at-will workers, many are tempted to believe they can’t do anything even if they are dismissed wrongfully from their jobs. This couldn’t be further from the truth! As discussed above, public policy violations, implied contract scenarios and instances where an employer acts unfairly or in bad faith warrant at-will employees in SAN JOSE and anywhere else in the US to launch wrongful dismissal claims.
What documentation should you have to support your wrongful dismissal claim?
You should gather all the documentation relating to your claim. This includes correspondence leading up to termination, evidence of discrimination, harassment, bad faith, etc. The company handbook and your employment contract, if present, should also be part of the documentation you present to your wrongful termination lawyer.
Services of a wrongful termination lawyer
Wrongful termination lawyers help their clients address all issue discussed above that can cause someone to be wrongfully dismissed. They play a crucial role in the technical, advisory, and representation aspects of wrongful termination cases.
I. Filling a wrongful termination charge
You need to file a formal charge of discrimination (signed statement stating you have been wrongfully dismissed by an employer) before you file a lawsuit. This applies to all EEOC enforced laws besides the Equal Pay Act. A lawyer can file a charge of discrimination on your behalf for legal reasons or purposes of protecting your identity. You must file your charge before the deadline – usually 180 days from the date of discrimination or termination. If you get a good San Jose wrongful termination lawyer, you don’t need to worry about timelines.
They should advise you accordingly in special instances, i.e., age-related cases which have longer deadlines, i.e., 300 days or if you are a federal employee or job applicant since there is a different complaint process and time limits. You may also want to seek internal dispute resolution mechanism like arbitration, mediation, union grievance, etc. If you seek legal help, you will be advised accordingly if such mechanisms are ideal given time limits aren’t extended even when you attempt other dispute resolution mechanisms. A wrongful termination lawyer can also help you navigate strict timeline issues. For instance, if you have two or more claims, they can help you get more time as deadlines apply to individual claims.
II. Assessment of charge information
The EEOC has a public online portal which you can access to see the status of your charge. Your attorney can help you manage your EEOC portal including; uploading supporting documents, checking the status of the charge, etc. It takes the EEOC 10 days from filling to send your employer a notice.
The EEOC has a mediation program which you can agree or disagree taking part in. Your lawyer will advise you accordingly in the mediation process. Mediation is aimed at helping both parties (you and your employer) reach a settlement. The process includes a discussion of concerns and suggestions on solving problems. The importance of having legal help in the mediation process can’t be overlooked for obvious reasons.
Charges which aren’t resolved via mediation must be responded to by both parties. Employers must provide a written answer. You also need to respond. The EEOC investigates charges on its own. You need legal advice to take part in the investigation accordingly in case your input is required.
IV. Filing a lawsuit
The EEOC should be allowed 180 days to resolve a charge although you may get a right to sue before 180 days are over. There are other guidelines to be adhered to before filing a lawsuit. For instance, the EEOC must give you a right to sue notice before you file a lawsuit for a discrimination case in federal court. Age-related cases don’t need a right to sue notice from the EEOC. You can file a lawsuit three months (60 days) after filing a charge with the EEOC. Filing a lawsuit for wrongful termination is highly dependent on the reason for termination and applicable law. You need a wrongful termination attorney to guide you through the process.
You have three months (90 days) to file a wrongful termination lawsuit in court after receiving a right to sue notice. There are exceptions depending on the lawsuit being filed. For instance, age discrimination lawsuits don’t need a right to sue notice before a case is filed in court. Equal pay lawsuits can be filed without a charge or right to sue notice. You can go to court directly provided the lawsuit is filed within two years, three years if discrimination was willful. There are laws (Title VII) prohibiting discrimination/firing based on sex when paying wages and benefits.
Once a case is in court, you need a seasoned San Jose wrongful termination attorney to argue the case out and get you the best possible settlement. Although you have the liberty to take on a wrongful termination case on your own or leave it up to the EEOC, it isn’t advisable to do so. Without proper legal representation, the complexity of wrongful termination cases can result in unprecedented delays, poor case execution and low, to no settlements.
To avoid unnecessary costs and wasting time, you need a wrongful termination lawyer from the onset to assess your case and determine if it is worth pursuing based on jurisdictional laws, available evidence, and timelines among other factors you would overlook.
Helpful Links for Filing a Wrongful Termination Claim in San Jose
Local San Jose Department of Fair Employment & Housing (“DFEH”) Office Contact Information:
- Address: 2218 Kausen Drive, Suite 100 Location: Elk Grove, CA, 95758
- Phone: (916) 478-7251
Local San Jose, CA Labor Board Office Contact Information:
- Address: 100 Paseo de San Antonio, Room 120, San Jose, CA 95113
- Phone: (408) 277-1266
- Email: LaborComm.WCA.SJO@dir.ca.gov
Local San Jose Equal Employment Opportunity Commission Office Contact Information:
There is no local EEOC office in San Jose, CA. The closest EEOC office is located in Oakland, CA.
- Address: 1301 Clay Street Suite 1170-N Oakland, CA 94612-5217
- Phone: 1-800-669-4000
- Fax: 510-637-3235
- Director: Dana Johnson
- Regional Attorney: Roberta Steele
San Jose Local Court Contact Information:
There is no local court in San Jose, CA. The closest court is the Santa Clara Superior Court.
- Address: 191 N 1st St, San Jose, CA 95113
- Phone: (408) 882-2100
- Website: http://www.scscourt.org/