- 一份口頭或者書面的僱佣合同（例如在工會和僱主之間的合同） 明確規定，僱主不能在沒有合理原因的情況下解僱工人；
- 一份默示合約implied contract明確表明，僱主不能在沒有合理原因的情況下解僱工人；
- 如果解僱的理由違反了公共政策，例如僱主以種族理由解僱一個 工人，或者工人被解僱是因為他揭發公司的非法行為等；
- 當僱主明知一個僱員有合理理由相信會得到僱用，為了爭取這份 工作而辭退另外一份工作、離開學校、搬家以接近工作地點等， 但仍然解僱這個僱員。
“Good cause” exists when the employer has a good faith business reason for discharging the employee, such as a layoff for economic reasons or termination of the employee for poor performance.
An implied contract is created when all the circumstances of the employment, including the statements and/or actions of the employer, lead a “reasonable” employee to believe that he or she can no longer be fired “at will” and that the employer must instead have “good cause” to terminate the employee.
There is no specific formula for determining whether you have an implied contract requiring “good cause” for termination. When deciding whether an implied contract exists, a court may consider the following evidence:
- Whether the employee has worked for the employer for many years;
- Good performance evaluations and commendations;
- Promotions, salary increases, and bonuses;
- Statements by the employer assuring the employee that his or her job is secure and will continue;
- Employee handbooks or personnel manuals specifically designating which offenses warrant the discipline or termination of an employee;
- Employee handbooks or personnel manuals describing a system of “progressive discipline” which the employer follows instead of firing workers “at will;”
- Whether it is the practice or policy of the employer to discipline or terminate employees only when there is a good reason.
If an “at will” provision is in your personnel manual or handbook, it is strong evidence against the existence of an implied contract. This can be overcome, however, by stronger evidence of an implied contract (see above.).
If you are covered by a union contract, you are probably protected from being fired without a good reason. If you are fired, and you believe there is not sufficient cause for your discharge, you should request the union to file a “grievance” on your behalf against the employer. In deciding whether to file your grievance or to take your case to arbitration, your union must represent you fairly. However, as long as your union takes reasonable steps to investigate your case, it may legally decide not to file your grievance or go to arbitration if it believes that your case does not have enough merit.
If you are covered by a union contract, you cannot take your case to court if it requires only an interpretation of your contract. Cases that can be taken directly to court because they do not involve your contract include most violations of public policy or law, such as discrimination on the basis of race, sex or disability.
If you have reasonably relied on a job offer to your detriment (e.g., by quitting another job, quitting school, moving to be closer to the job, investing money in equipment or training, or incurring other expenses reasonably related to the job offer), your employer may be liable if it terminates you before a reasonable period of time goes by. In that case, the employer may owe you money to compensate for the amount you reasonably spent, and for the expense of finding a new job. (If the amount owed is less than $7,500, you may be able to recover the funds in small claims court, without a lawyer.)
Many state, federal, and even local laws prohibit employers from terminating employees because of certain forms of discrimination or retaliation. If your termination violates one of these laws, you may be able to take legal action.
A termination might violate law or public policy if it is based on:
- discrimination based on race, national origin, sex, pregnancy, religion, disability, age, marital status, sexual orientation, or gender identity.
- discrimination or retaliation for seeking a reasonable accommodation for a disability.
- discrimination or retaliation for having complained about discrimination or unlawful harassment, or for having filed a charge of discrimination with a government agency.
- discrimination based on a serious health condition necessitating a leave of absence.
- retaliation for taking a leave of absence for a serious medical condition.
- discrimination or retaliation for having been injured on the job, or for having filed a claim for workers’ compensation.
- retaliation for having complained about workplace safety.
- retaliation for having complained about wage violations or for having filed a wage claim.
- discrimination or retaliation for having joined a union or for participating in lawful union activities.
- retaliation for having complained to the employer, or to a government agency, about the unlawful activities of the employer.
If you have been fired in a manner that you believe violates law or public policy, you may be able to (depending on a number of factors, such as the size of the employer) file a complaint with the government agency that specializes in the particular law. Listed on the next page are the most common violations of law or public policy, together with the state or federal agency that accepts complaints. Call directory assistance or go to the agency’s website to find the office closest to you.
Basis for Termination Agency or Agencies Discrimination or harassment (or retaliation for complaining about discrimination or harassment) on the basis of race, national origin, sex, pregnancy, disability, age, religion, marital status, sexual orientation, or gender identity. U.S. Equal Employment Opportunity Commission (EEOC) (except claims for sexual orientation and gender identity) or the California Department of Fair Employment and Housing (DFEH) Discrimination or retaliation for seeking a reasonable accommodation for a disability EEOC or the DFEH Discrimination on the basis of a serious medical condition necessitating a leave of absence EEOC or the DFEH. The U.S. Department of Labor Retaliation for taking a medical leave of absence Discrimination or retaliation for being injured on the job, or for filing a claim for workers’ compensation California Workers’ Compensation Appeals Board Retaliation for complaining about workplace safety California Department of Industrial Relations, Division of Labor Standards (“Labor Commissioner”) Retaliation for complaining about wage and hour violations, or for filing a wage claim Labor Commissioner Discrimination or retaliation for joining a union, or for participating in lawful union activities National Labor Relations Board (NLRB) for private employees; California Public Employee Relations Board (PERB) for state employees
This Fact Sheet is intended to provide accurate, general information regarding legal rights relating to employment in California. Yet because laws and legal procedures are subject to frequent change and differing interpretations, the Legal Aid Society–Employment Law Center cannot ensure the information in this Fact Sheet is current nor be responsible for any use to which it is put. Do not rely on this information without consulting an attorney or the appropriate agency about your rights in your particular situation.