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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 12804
Experience:  Significant experience in all areas of employment law.
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I was recently fired from my job and was given a nice severance.

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I was recently fired from my job and was given a nice severance. I was the Executive VP that managed HR, IT and compensation for the company. Although it didn't come up in my parting meeting I felt I was being fired because they did an investigation and found out I was having an affair with the HR manager. She has been out on pregnancy leave for 6-months now is going back on November 15. I feel they will fire her also. We ended the affair when she got pregnant (artificial insemination) and now has two babies. I have three questions, 1. What kind of proof do they need to justify firing her?, and 2. If she told them I forced her to have sex with me in order for her get raises and promotions, can they come back and sue me for these actions or would the HR manager need to personally sue me. 3. If she informed them of being forced can they still fire her. Because I would think the responsibility turns to the company at that point. This is a Japanese company and do you have anyone you can recommend for her to talk to before going back to work? Thank you
Hello and thank you for entrusting me to answer your question.

California Labor Code Section 2922 provides that: "employment, having no specified term, may be terminated at the will of either party on notice to the other." Assuming that she does not have a contract that guarantees her employment for a specified term, she is an "at-will" employee. As an at will employee, she is free to leave her job at any time. In exchange, the employer is free to change the requirements, promote, terminate or demote her as it sees fit and without reason.

It tends to be a common misconception that the law in California prohibits employers from terminating employees who are on protected medical leave. Unfortunately, this is not exactly true. The federal Family Medical Leave Act ("FMLA") and its California counterpart legislation protect employees from being terminated on the BASIS of them taking medical leave--they do not absolutely prohibit termination of an employee on a medical leave. The difference is subtle, but quite important.

In order to prevail on a claim of wrongful termination, one would need to show that there was no legitimate basis for their termination other than the fact that they were on protected leave. Termination immediately upon returning from protected leave would certainly raise an inference that the termination was motivated by the employee's decision to take protected leave, but does not necessarily guarantee the returning employee any sort of job security. If the company has a legitimate reason to dismiss the returning employee upon his or her return, the company my typically do so, provided it is not otherwise violating California or federal laws.

If she claims that you conditioned sexual favors on raises or promotions, this is known as "quid pro quo" sexual harassment and is typically actionable. She would have a cause of action against you personally and potentially against the company. If she only sued the company, the company could likely sue you for "indemnification," (forcing you to accept part of the responsibility for the suit).

If an employee informs his or her employer of sexual harassment and is then fired in retaliation for reporting that conduct, she would typically have a valid claim for retaliatory discharge.

If my answer has been helpful to you, please click on the GREEN ACCEPT button directly above. I will not get credit for assisting you or receive payment for my work unless you do this. Your question will not close after you click "accept," and you will still be able to ask follow-up questions if necessary.

The only facts I know about your situation are the ones that you tell me, so please try to be specific and bear in mind that, occasionally, miscommunications will occur. I will do everything I can to clarify my answer if I have misunderstood your question. Also bear in mind that the law does not always read how we think it should. I ask that you be understanding if an opinion I have provided is not consistent with what you wanted to hear.

Finally, the information that I have provided is not legal advice. I am not acting as your attorney and my answer does not establish an attorney-client relationship between us. I encourage you to consult with a local attorney in regard to legal matters.
Patrick, Esq. and other California Employment Law Specialists are ready to help you
Customer: replied 5 years ago.
I signed an extensive release for the company and for me. This is why I thought they couldn't sue me for the sexual harrassment. Even with this document can they still sue me?

I also thought when returning from pregnancy leave that person is guaranteed her job back upon return. This is not true?

Your answer so far is excellent.
Well, it would depend on the specific language contained in your release. Typically, severance releases have language that prevents the employee from suing the employer, but not the other way around. If yours contains language preventing your company from suing you, that would likely also apply to any attempted claim for indemnification.

What you should understand is that indemnification is not a separate lawsuit, but a way to plead an "at-fault" party into an existing lawsuit. A company probably could not sue an employee who perpetrated sexual harassment directly because they lack "standing," meaning they were not directly harmed. Only the person who actual suffers harm can bring a lawsuit.

"I also thought when returning from pregnancy leave that person is guaranteed her job back upon return. This is not true? "

This is not exactly true, and is the common misconception that I spoke about above. An employer can typically terminate an employee who is on protected leave if they have legitimate cause unrelated to the protected leave, or if they eliminate the position. The employee is protected from the employer terminating them on the BASIS of them having taken protected leave. The problem for an employee is that they will face heavy scrutiny if they terminate an employee who is on leave or recently returned from leave and they will have to demonstrate that the reasons for the employees termination were legitimate.

I hope that this helps clarify, and please remember to click "accept" so that I get credit. Thanks so much and good luck.