Unlawful Firing of an Employee in California
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At-Will Employment Doesn't Mean an Employer Can Fire You for an Illegal Reason
California is an at-will employment state, but that rule has a hard limit: employers cannot fire someone for an illegal reason. Under the Fair Employment and Housing Act (Government Code §§ 12900, 12996), Labor Code § 1102.5, and the public-policy doctrine established in Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, an employer who fires a worker because of a protected characteristic, to punish a legal complaint, or to retaliate for exercising a legal right has committed an unlawful firing. The affected employee may be entitled to back pay, front pay, emotional distress damages, uncapped punitive damages, and attorney’s fees. If you were told “restructuring” or “performance” was the reason but suspect something else was behind it, the legal framework below will help you evaluate whether your situation qualifies.
The California Supreme Court confirmed this in Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317: even an at-will employee can pursue wrongful termination claims when the firing breaches an implied contract, violates public policy, or violates FEHA’s anti-discrimination provisions. At-will status is the starting point of the analysis, not the end of it.
The four legal theories that make a firing unlawful in California
- FEHA discrimination: Termination because of a protected characteristic under Government Code § 12940, applicable to employers with 5 or more employees.
- Whistleblower and retaliation statutes: Termination for reporting a legal violation or filing a wage complaint, prohibited by Labor Code §§ 1102.5, 98.6, and 6310.
- Tameny public-policy doctrine: Termination for exercising a statutory right (workers’ compensation, jury duty, CFRA leave) or for refusing to commit an illegal act.
- Implied contract: Termination that violates job-security promises made in a handbook, through verbal assurances, or through a consistent course of conduct such as progressive discipline.
Unlawful Firing Based on a Protected Characteristic (FEHA Discrimination)
Government Code § 12940 prohibits employers with five or more employees from terminating a worker because of a protected characteristic. The California Civil Rights Department (CRD) enforces FEHA and recognizes the following protected characteristics: race, color, national origin, ancestry, religion, sex (including pregnancy, childbirth, and related medical conditions), sexual orientation, gender identity, gender expression, age (40 years and older), disability, medical condition, genetic information, marital status, and military or veteran status. Harassment protections extend to all California workplaces regardless of size, including those with only one employee.
Discrimination claims follow the McDonnell Douglas burden-shifting framework. The employee first establishes a prima facie case by showing they belong to a protected class, were qualified for the job, and were terminated under circumstances suggesting discrimination. The burden then shifts to the employer to articulate a legitimate, non-discriminatory reason. If the employer does so, the burden returns to the employee to show that reason is a pretext. This is why documentation of performance reviews, supervisor comments, and timing is critical: pretext is often established through inconsistency between the employer’s stated reason and its actual conduct.
Common examples of discriminatory unlawful firing in California
- Age (40+): A 55-year-old employee is let go shortly after the company hires several employees in their 30s, despite equal or better performance reviews.
- Disability: An employee who requests a reasonable accommodation for a physical impairment is terminated within weeks of making the request.
- Pregnancy: A worker is fired after disclosing her pregnancy, even though her performance record was clean before the announcement.
- Race or national origin: An employee of a particular race is held to a stricter attendance policy than similarly situated coworkers and ultimately terminated for violations the others were not disciplined for.
- Gender identity or expression: An employee is fired after transitioning and changing her name, with the employer citing “customer relations” as the justification.
Unlawful Firing in Retaliation for Whistleblowing or Wage Complaints
Labor Code § 1102.5 is California’s broad whistleblower protection statute. It prohibits employers from retaliating against any employee who, in good faith, reports a suspected violation of any state or federal law to a government agency, to law enforcement, or to a supervisor or other person with authority to investigate or correct the conduct. It also protects employees who refuse to participate in illegal activity. Setareh Law Group’s wrongful termination attorneys regularly handle cases where the firing came within weeks of a protected complaint, making the timing itself a key piece of evidence.
SB 497, effective January 1, 2024, added a rebuttable presumption of retaliation under Labor Code § 1102.5: if an employer takes adverse action against an employee within 90 days of a protected disclosure, the law presumes the action was retaliatory. The employer must then prove the action was taken for a legitimate, non-retaliatory reason. This presumption is a practical advantage because it shifts the burden at the outset, rather than requiring the employee to build an entire pretext case from scratch.
Two additional statutes fill specific gaps. Labor Code § 98.6 makes it illegal to retaliate against an employee for filing or threatening to file a wage complaint with the California Labor Commissioner. Labor Code § 6310 prohibits retaliation against employees who report workplace health and safety violations.
What counts as a protected report under California’s whistleblower law
- An internal complaint made to a supervisor or manager who has authority to investigate or correct the problem.
- A report made to an external government agency, such as the Labor Commissioner, Cal/OSHA, or a law enforcement agency.
- A refusal to participate in conduct the employee reasonably believes violates a state or federal law, rule, or regulation.
- A report of any state or federal legal violation, not limited to employment laws. A report about financial fraud, environmental violations, or consumer safety issues is covered.
For a closer look at how whistleblower retaliation claims are evaluated by California courts, the pattern of timing, supervisor hostility after the complaint, and pretextual disciplinary write-ups are among the most significant evidentiary factors.
Unlawful Firing That Violates California Public Policy (The Tameny Doctrine)
In Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, the California Supreme Court established that an employer cannot fire an employee for a reason that violates a fundamental public policy of the state. Tameny claims arise in two primary situations: (1) the employee was fired for exercising a statutory right, such as filing a workers’ compensation claim, taking CFRA or FMLA leave, or serving on a jury; or (2) the employee was fired for refusing to commit an illegal act at the employer’s direction.
The critical distinction from a contract-based claim is that Tameny claims sound in tort. That means compensatory damages for emotional distress and uncapped punitive damages are available, not just economic losses. Tameny and FEHA claims frequently travel together in the same lawsuit, arising from the same firing event and seeking overlapping but complementary remedies.
Consider this illustrative example: a warehouse worker files a workers’ compensation claim after a back injury on the job. Two weeks later, his supervisor places him on a performance improvement plan for issues that were never previously documented. He is terminated at the end of the plan period. The timing, the sudden documentation, and the absence of prior discipline warnings are all evidence supporting a Tameny claim for retaliation against a workers’ comp claimant. This is one of the most common patterns seen in public-policy termination cases.
When a Handbook or Verbal Promise Can Make a Firing Unlawful
The implied-contract exception to at-will employment is one of the most overlooked protections available to California workers. Under the framework established in Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, employers who make job-security promises through their own policies may lose the right to fire at will. Relevant evidence includes: handbook language stating employees will only be terminated “for cause,” a progressive-discipline policy that was not followed, verbal assurances from a supervisor that the employee’s job was secure, or a long-term employment relationship with consistent positive reviews and no prior discipline.
A frequent employer defense in these cases is that the handbook contains a disclaimer stating that “nothing in this handbook creates a contract of employment.” California courts have considered such disclaimers but have also found that they do not automatically override a pattern of conduct that objectively communicated job security to the employee. If your employer had a written discipline process and skipped it entirely before firing you, that discrepancy is worth discussing with an attorney. Workers facing large-scale or mass firing situations may have additional protections under California’s WARN Act that interact with implied-contract claims.
Common Employer Defenses and How a Worker Can Counter Them
Employer defenses and employee responses in unlawful firing claims
Employer Defense | What the Employer Will Argue | How an Employee Can Counter It
|
|---|---|---|
Performance or misconduct | The employee was fired for documented performance issues or policy violations, unrelated to any protected characteristic or complaint. | Show that the documentation appeared or intensified after the protected activity; that similarly situated employees outside the protected class were not disciplined for the same conduct; or that prior reviews were consistently positive. |
Position elimination / restructuring | The role no longer exists and the company was cutting costs across the board. | Establish that other employees in the same classification were retained; that the position was refilled after the termination; or that only employees who complained or belong to a protected class were selected for elimination. |
At-will status | The employee had no written contract and was an at-will employee who could be let go for any reason. | Demonstrate that the reason given was illegal under FEHA, Labor Code § 1102.5, or the Tameny doctrine, all of which override at-will status. Point to any handbook policies, verbal assurances, or progressive-discipline practices that created an implied contract. |
No knowledge of the protected activity | The decision-maker did not know about the employee’s complaint, leave, or protected characteristic when the termination decision was made. | Identify who knew what and when through emails, HR communications, or meeting notes. Under the “cat’s paw” theory recognized in California courts, a biased supervisor’s input can taint a decision even if the final decision-maker claims ignorance. |
Legitimate temporal gap | The termination occurred months after the protected activity, so there is no causal connection. | Show a pattern of adverse treatment in the intervening period: unwarranted write-ups, schedule changes, exclusion from meetings, or other escalating hostility that links the complaint to the eventual firing. |
What You Can Recover from an Unlawful Firing Claim in California
California law provides a broad set of remedies for unlawful firing. The goal is to make the employee whole and, in cases of egregious misconduct, to punish the employer. Available remedies include:
- Reinstatement or comparable employment: Return to the same or a substantially equivalent position.
- Back pay: Lost wages and benefits from the date of termination to the date of judgment.
- Front pay: Future lost earnings when reinstatement is not feasible, such as when the working relationship has become irreparably hostile.
- Emotional distress damages: Compensation for the psychological harm caused by the unlawful termination.
- Uncapped punitive damages: Available for egregious FEHA violations. Unlike many states, California imposes no statutory cap on punitive damages in FEHA cases.
- Attorney’s fees and costs: A prevailing employee in a FEHA case is entitled to recover attorney’s fees from the employer, which makes it practical to pursue these claims even when economic damages alone might not justify the litigation cost.
California Deadlines for an Unlawful Firing Claim: Don't Miss Your Window
Claim Type | Filing Deadline | Where to File / What Starts the Clock
|
|---|---|---|
FEHA discrimination or retaliation complaint | 3 years from the unlawful act | California Civil Rights Department (CRD); clock starts at termination date |
Civil lawsuit after CRD right-to-sue notice | 1 year from the notice date | California Superior Court; clock starts when CRD issues the notice |
Tameny / wrongful termination in violation of public policy | 2 years from termination | California Superior Court; no administrative filing required |
Implied oral contract breach | 2 years from termination | California Superior Court; no administrative filing required |
Written employment contract breach | 4 years from termination | California Superior Court; no administrative filing required |
Labor Code § 1102.5 whistleblower retaliation | 3 years from termination | California Superior Court; no administrative filing required |
Federal EEOC charge | 300 days from the unlawful act | |
Federal civil lawsuit after EEOC right-to-sue | 90 days from EEOC notice | U.S. District Court; clock starts when EEOC issues the notice |
FEHA’s three-year filing window under AB 9: why the old one-year rule no longer applies
Older articles and some employer-side resources still cite a one-year deadline for FEHA complaints. That figure is incorrect for any termination occurring on or after January 1, 2020. AB 9, signed into law in 2019, amended Government Code § 12960 to extend the CRD filing window from one year to three years. If you were told your time has passed based on the old one-year rule, verify the date of your termination with an attorney before accepting that conclusion. Note also that the three-year CRD deadline is separate from the federal EEOC’s 300-day deadline. California workers generally have more time under state law than under federal law.
Steps to Take After an Unlawful Firing in California
- Preserve documents immediately. Save copies of offer letters, handbooks, performance reviews, disciplinary notices, emails, and any communications that preceded or followed the termination. If you had access to a work email or system, note that access is often cut off on the day of termination.
- Write a contemporaneous account. While memory is fresh, write a detailed timeline: what was said, by whom, on what date, and who else was present. Note any prior complaints you made and how the employer responded.
- Identify witnesses. Think about coworkers who observed relevant conduct, supervisor comments, or the employer’s treatment of similarly situated employees in or outside your protected class.
- Do not sign a severance agreement before consulting an attorney. Severance agreements commonly include a release of all legal claims. Once signed, that release is generally enforceable and bars your lawsuit. You have time to review before signing.
- Contact an employment attorney before your deadline. The applicable clock may be shorter than you expect, particularly if a federal EEOC charge (300 days) is relevant to your situation. Early consultation also preserves evidence that can disappear.
If your termination was part of a larger layoff, the 2026 California WARN Act protections may also apply, requiring advance notice and potentially triggering additional remedies if proper procedures were not followed.
What This Means If You Were Just Fired
If your gut tells you the stated reason does not match the real one, California law gives you multiple legal theories to test that instinct against actual evidence. The most important step right now is not to assume that “at-will” means you have no options.
Document what happened while it is fresh, hold off on signing any severance agreement, and map the timing of your termination against any complaint, leave, or characteristic that was salient to your employer. The three-year FEHA window is longer than most people expect, but the 90-day SB 497 presumption window and the 300-day EEOC window are short enough to pass without notice. Consulting an attorney early, not later, is what protects your ability to choose among your options rather than having them close around you.
Frequently Asked Questions
Does “at-will” employment mean I can’t sue for wrongful termination?
No. At-will employment means an employer can terminate without a specific reason, but not for an illegal reason. FEHA, Labor Code § 1102.5, the Tameny doctrine, and implied-contract law all create enforceable exceptions that apply to at-will employees.
What if my employer says the position was eliminated?
Position elimination is a common defense, but it is not automatically dispositive. If the role was refilled after your termination, if only employees in a protected class or who filed complaints were selected for elimination, or if the timing closely follows a protected activity, those facts can support a pretext argument. The employer bears the burden of showing the elimination was unrelated to the protected activity once a prima facie case is established.
Do I have to file with the CRD before I can sue under FEHA?
Yes. For FEHA discrimination and retaliation claims, you must first file a complaint with the California Civil Rights Department and receive a right-to-sue notice before filing a civil lawsuit. After the notice issues, you have one year to file suit under Government Code § 12965. Tameny and whistleblower claims under Labor Code § 1102.5 do not require an administrative filing before going to court.
Can I recover attorney’s fees if I win?
Yes, for FEHA claims. A prevailing employee is entitled to recover attorney’s fees and costs from the employer. This makes it economically viable to pursue meritorious claims even when individual economic damages are modest.
What if my employer was small and had fewer than five employees?
FEHA’s anti-discrimination provisions require at least five employees, but anti-harassment protections apply to all employers regardless of size. Tameny public-policy claims and Labor Code § 1102.5 whistleblower protections also apply regardless of employer size. An attorney familiar with California’s unfair firing laws can help you identify which theories remain available based on your employer’s headcount.
Contact Setareh Law Group: If you believe you were the victim of an unlawful firing, our California employment attorneys are available to evaluate your claim. Contact Setareh Law Group to schedule a consultation and discuss your options before your filing deadline passes.
Contact us today:
📞 Phone: 310-888-7771
✉️ Email: help@setarehlaw.com
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Disclaimer: This article is general legal information only and does not constitute legal advice. Reading this article does not create an attorney-client relationship between you and Setareh Law Group or any of its attorneys. Employment law facts are highly specific to individual circumstances, and outcomes vary. You should consult a licensed California employment attorney to evaluate your specific situation.
Sources and Additional Resources
Authoritative sources cited
- Fair Employment and Housing Act (Government Code §§ 12900, 12996)
- Labor Code § 1102.5
- California Civil Rights Department (CRD)
- Labor Code § 98.6
- Labor Code § 6310
- U.S. Equal Employment Opportunity Commission
- Government Code § 12960
- Government Code § 12965
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