On June 2, 2016, a California Court of Appeal issued a decision in favor of an employee on a wrongful termination claim that provides a classic example of common employer mistakes that create liability.  In the case of Moore v. University of California, a three-year employee was terminated allegedly as part of a reduction in force.  The evidence showed that two years into her employment, not long after receiving a promotion,  she was diagnosed with a heart condition that required her to wear a “life vest” while at work that was clearly visible.  When told by the subject employee of the condition, her supervisor commented that she needed to “lighten the employee’s load due to stress.”  The supervisor in emails to Human Resources  referred to the employee’s condition as an “adverse health issue.”  The supervisor later told the employee that she had been in touch with HR to ask “how to handle [the employee] as a liability  to the department.”

Shortly after announcing her heart condition to her supervisor, the employee’s job duties were reduced against her wishes.  She was later demoted and eventually laid off as part of a purported reduction in force.  Leading up to the reduction in force lay off, in internal emails HR questioned the supervisor on the decision to lay off the subject employee since it violated the company’s own reduction in force written policy based primarily on seniority.  The reduction in force policy also required the company to give preference to laid off employees to fill later open positions.  There were several such positions that opened following the reduction in  force, but the employee was never contacted by the company to offer her those positions.

The appellate court ruled in favor of the employee based in part on several aspects of the employer’s conduct  which illustrate common mistakes that result in wrongful termination liability:

• Bad Timing:  Here, all of the adverse action toward the employee took place within months of her informing  her employer of her medical condition, while she had previously been employed for over two years with a good performance record including one promotion.  Adverse employment decisions must always first be carefully vetted by employers before implementation where such adverse action closely follows “protected activity” by the employee such as complaints about perceived illegality at the workplace, disclosure of disabilities or serious medical conditions, etc.  The court in this case paid a lot of attention to the timing issue, found it suspect and held it against the employer.
• Poor Wording:  Words matter.  Managers must be very careful, particularly when creating writings or emails regarding employees.  In a lawsuit, these words are closely scrutinized.  In this case, the manager used phrases such as “adverse health issue” and referred to the employee with the medical condition as a “liability to the department.”  This damaged the employer’s position in the lawsuit.
• Failure to Follow Company Policy:    When a company fails to follow its own written policies it will have a lot of explaining to do in a lawsuit.  Judges and juries expect companies to follow their own policies and written procedures.  If a company is not following a particular policy or procedure, that policy should be expressly revoked by the company.  In this case, the court found that the  company’s failure to follow its own reduction in force policy toward the subject employee was strong evidence that the company intentionally discriminated against the employee due to her medical condition.  Under the company’s policies, other less senior employees should have been laid off instead and in any event the subject employee was never notified of later open positions for which she was entitled to rehire preference.

Prudent employers can learn a lot from this case to avoid making the same or similar mistakes which result in costly wrongful termination claims.