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Employment · Employer defense
Wrongful termination and retaliation defense
A wrongful termination claim says a firing broke the law: it violated public policy, an employment contract, or a statute that protects employees who complain or take leave. Fernald & Zaffos defends employers against wrongful termination and retaliation claims in California and Nevada, from the first demand letter through trial or arbitration.
Leads this practice
Adam P. Zaffos · Partner
More than 25 years of complex litigation, including employment and class actions as a senior litigator at The Wonderful Company. Admitted in California.
What these claims allege
- Termination in violation of public policy (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167)
- Retaliation for complaining about discrimination, harassment, wages or safety
- Whistleblower retaliation under Labor Code section 1102.5
- Breach of an express or implied promise of continued employment
- Retaliation for taking protected leave
How these cases are decided
California is an at-will state, but at-will employment does not protect a termination made for an unlawful reason. Most cases turn on why the decision was made, who made it, and whether the documents written at the time support the stated reason.
Whistleblower claims under Labor Code section 1102.5 use a burden-shifting test that favors employees: once the employee shows protected activity contributed to the decision, the employer must prove by clear and convincing evidence it would have made the same decision anyway (Lab. Code § 1102.6; Lawson v. PPG Architectural Finishes (2022) 12 Cal.5th 703). Documentation made before the complaint matters.
How we defend them
- Early assessment. We review the personnel file, the timeline and the decision-makers’ records before responding.
- Forum. If there is an arbitration agreement, we move to enforce it.
- Motions and discovery. We build toward summary judgment where the record supports it.
- Resolution or trial. We negotiate when it makes sense and try the case when it doesn’t.
Deadline
Preserve records now
Once a claim is threatened, keep the personnel file, emails, texts and timekeeping records. Lost evidence can hurt a defense more than the underlying facts.
Employment results
Employment arbitration · Appeal
Order reversed
Court of Appeal sent a former employee’s wrongful termination suit to arbitration
California Court of Appeal, Second District
Employment discrimination defense · Verdict
Complete defense win
Jury rejected five of six FEHA claims; the court then set aside the remaining award
Los Angeles Superior Court
Prior results do not guarantee a similar outcome.
Common questions
Don’t see yours? Call (323) 410-0300.
What is wrongful termination in California?
A firing for an unlawful reason, such as retaliation for protected activity, discrimination, or a reason that violates public policy. At-will employment does not protect an unlawful termination.
A former employee says they were fired for complaining. What should we do?
Preserve the records, avoid contact about the claim, notify your EPLI carrier if you have one, and get counsel before responding.
Can we move the case to arbitration?
If the employee signed an enforceable arbitration agreement, often yes. We have obtained a reversal on appeal sending a wrongful termination suit to arbitration. Prior results do not guarantee a similar outcome.
What damages can an employee recover?
Depending on the claim, lost wages and benefits, emotional distress damages, attorney’s fees under some statutes and, in some cases, punitive damages or civil penalties.
How long does an employee have to sue?
It depends on the claim. FEHA claims require a Civil Rights Department complaint within three years. Common-law wrongful termination claims generally have a two-year limit.
Related
The information on this page is general and is not legal advice. Contacting the firm does not create an attorney-client relationship. Prior results do not guarantee a similar outcome.