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September 12, 2006 > Watercooler Counsel

Watercooler Counsel

by Rich Proulx

Are We Speaking the Same Language here?

Q: I was fired the other day for stealing. I didn't do it and I know that other people gave merchandise to their families. Can I sue my employer for wrongful termination? Dennis A. Milpitas

A: Wrongful termination is a broad term. Typically, it means firing someone illegally or in breach of contract. Many states, including California, are "at will" employment states. This means that an employer has the right to fire an employee for no reason, but this does not give the employer license to terminate an employee for illegal reasons.

In order to better answer your question, I would need to better understand why you think you were targeted. For example, do you believe you were singled out because of your race? Do you think you employer was out to get you because you recently complained of unsafe working conditions? More information would help me figure out whether your employer's actions were illegal.

A related concern is you also stated that you did not steal. If your employer is telling people that you did, it might be defaming your character. A defamation suit arises when the accusations made against you are knowingly false, are made with reckless disregard of whether they are true or false (and are actually false), or are based on opinions formed in bad faith. One key question to help tell if you have a good defamation of character claim is whether the employer has any evidence that you really did commit a dishonest act. Another good question is whether you have commonly done the same act without any problems previously. Both wrongful termination and defamation lawsuits require broad knowledge of employment law and I recommended that you seek legal advice on these complex issues.

Q: Can I ban an ex-employee from my premises just as a matter of policy?

Keeping trouble at bay Fremont

A: I'm sure everyone can remember a story about a disgruntled employee that returned to perpetrate some act of violence against his/her former managers or coworkers. In response to these well-publicized cases, employers took appropriate measures to ensure the safety of their workforce. Many issued ID badges or installed other types of security systems to limit access to the worksite only to those individuals with a legitimate business need.

Many companies adopt policies that ban former employees from visiting the worksite, whether the separation was voluntary or involuntary. Such policies are not unlawful, unless they are unequally applied. For example, an employer may have a policy which prohibits all former employees from accessing the premises, but in practice this policy may be applied only to employees who have made discrimination complaints. This would be a lawful policy that is applied in an illegal manner; that is with the intent of retaliating against individuals who made protected complaints.

I recommend that, whatever policy you implement regarding former employees, you follow it consistently. Many employment disputes arise from the unequal application of otherwise legitimate workplace policies.

There is a complex assortment of laws that govern employment actions and Rich and his team of government experts try their best to make them clearer then mud. According to OSHA, homicide is the fourth-leading cause of fatal occupational injury in the United States. Send your questions to Rich at Watercooler.Counsel@eeoc.gov who is a former Supervisory Investigator for the Equal Employment Opportunity Commission www.eeoc.gov. Identifying information in the questions may be fictional.

 
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