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socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 39043
Experience:  Retired (mostly)
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My wife was recently fired from here job of over 4 1/2 years,

Resolved Question:

My wife was recently fired from here job of over 4 1/2 years, and was given conflicting reasons why and with out any warning. This is the background:

She was employed as an Assistant Bookkeeper for a Business Management company. Last year she had been attempting to see about moving up to promoted to either a Bookkeeper or a Jr. Bookkeeper with a couple of her own clients. Her immediate supervisor was supportive, however she became pregnant in July of 2010 and when she continued to discussed with the partner that she is under about moving up in the company, he stated that they should revisit it after she returned from maternity leave. My wife agreed with this and went on maternity leave in Feb, 2011. She returned in July of 2011 and had hoped to start discussions again about moving up in the company.

While she was gone they hired a new HR person and changers were being made at the company. She was having a difficult time getting any answers about moving up and was having problems with the HR person over her need to try to work a slightly different schedule (20 minute differences) in order to be able to pick her daughter up from child care. My wife was then brought in by one of the 5 partners, not the one she works directly under, and was told that she was being let go because of an error she made on her time care when entering it into the computer. She had gotten approval from her immediate supervisor to leave work 2 hours early to take her daughter to a doctor's appointment. At her work they have Datafaction which is the software they use for time cards. If you are leaving early and not working an 8 hour day, you need vacation time to use to make up for any missed time. She had apparently forgot to check that she had vacation time to be used for the missing 2 hours. She did have this time and the day in question was about 2 weeks after she returned from maternity leave. She was let go about 2 months after this error, with no prior verbal or written warning or discussion of the matter, and to her knowledge no other negative issues with her over 4 1/2 years of work. Furthermore the partner was claiming that because she incorrectly entered her time that she was attempting to commit "fraud" on the company. Again she did have vacation time in which she could of used for any time that she would of missed for the doctor's appointment, but the HR person never came to her soon after the error to have it corrected.

To complicate matters more, my wife was told by her immediate supervisor, who was not informed of my wife being let go until the night before it occurred, that she was being let go because of concerns that the partner she works for had with her ability to do the work assigned her. Even though her supervisor told the partner that my wife was doing and completing all work assigned to her.

Sorry that this might seem long but I want to give as much information as possible. We are wondering if we have any possible legal action for wrongful termination and possible damages as my wife had been with this company for almost 4 3/4 years, never had any disciplinary issues that she knew of. She always received favorable performance evaluations and was let go with no verbal or written warning and accused of attempting to commit "fraud" on the company. She also had another co-worked, who was also pregnant, who had some issues with the HR person and appears to of been forced out of the company as well. She feels that once she came back from maternity leave that situations change for the negative for here at the company. She had very much enjoyed working there and had hoped to continue to move up in this company.

Thank you for your time
Submitted: 5 years ago.
Category: California Employment Law
Expert:  socrateaser replied 5 years ago.

Your question has been sitting for a few days. Do you still require assistance?
Customer: replied 5 years ago.
Yes, I am still looking for assistance one this question dealing with my wife being terminated wrongfully from work.
Expert:  socrateaser replied 5 years ago.
Under California Labor Code 2922, an employer can terminate an employee "at will:" at any time, for any reason, or for no reason at all. There are four exceptions to the law:

1. The employee has an employment contract with a specified future termination date of more than one month after the commencement of employment;

2. The employer has engaged in unlawful discrimination based upon race, color, nationality, ancestry, religion, sex, sexual orientation, pregnancy, age or disability;

3. The employer has terminated the employee in violation of a well-established public policy (jury duty, witness subpoena, whistleblower statute, report of employer's criminal activities to law enforcement, etc.);

4. The employer has violated its own disciplinary policy (implied contract), which provides for a specific process that must be followed prior to any termination of employment.

Based upon your stated facts, there are two possibilities: sex discrimination, i.e., that your wife was terminated because she is a woman, and due to her emphasis on maternal obligations, she is no longer viewed as being a productive employee; and/or breach of disciplinary policy, i.e., that your wife was terminated without following the employer's required procedures (whatever they are).

In order to bring an action for sex discrimination, your wife would have to show that she was replaced by someone of the opposite sex. It is not sufficient to show that a person of the same sex, who does not have children was hired. If she can do this, then she may have a viable claim against the employer.

To bring an action for breach of implied contract/discplinary policy, you would have to (or have a lawyer) review the employment handbook and any other written agreements to see if there was a violation of the process.

A discrmination action is usually easier to bring than a contract action, principally because most employees cannot recover attorney's fees in a contract action. So, unless the employee is very highly compensated, then the value of the lawsuit is usually less than the cost of a lawyer -- making the case a nonstarter. However, you can certainly raise both issues with an employment rights lawyer in your area.

The easiest way to bring a sex discrimnation action is to file a complaint with the Department of Fair Employment and Housing. However, DFEH likes easy to win cases, and yours is not, based upon your facts. So, you may be rejected. Nothing to lose, however, by filing the complaint.

To contact DFEH, see this link.

For an employment rights lawyer referral, see this link.

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