HARRIS E. KERSHNAR : Firing Back at Ex-Employer : Attorney Discusses Lawsuits Over Wrongful Termination

Donald Bott, 55, of San Clemente claimed he was terminated from his 17-year job as Santa Ana’s director of personnel in 1983 because of his age and his efforts to expose wrongdoing in city hiring. Six months ago, a jury decided it didn’t believe him. But last week, Superior Court Judge Leonard Goldstein said he did and overturned the jury’s verdict, awarding Bott $1.8 million.

The case is a good example of the difficulties involved in proving a wrongful termination lawsuit. Courts and legislatures are providing an increasing amount of protection for employees from indiscriminate firings but many of the laws are complicated. Nearly all require anybody terminated to act quickly if he or she hopes to win a verdict against a former employer.

Tustin attorney Harris E. Kershnar has represented more than 100 indi viduals who have sued their former employers for wrongful termination. He spent the early part of his career defending employers from such suits but changed sides in 1985.

“I’m philosophically more comfortable representing the underdog,” he said.

Kershnar, 36, now serves on the American Bar Assn.’s Equal Employment Opportunity Committee and is a former chairman of the labor law section of the Orange County Bar Assn. He graduated from the law school at UC Berkeley. He recently spoke with Times staff writer Gregory Crouch about how fired employees can vindicate themselves in court.

Q. What types of wrongful termination cases have you typically argued?

A. They are a varied lot. One was a case involving a large oil company that conducted searches of employees’ vehicles and lockers as well as the employees themselves. The employee I represented was discharged because a marijuana cigarette was found in his car. The jury reached a verdict in favor of the employee on the grounds the employer violated an expressed agreement not to discharge people without good cause. Plus, there was an inadequate showing that the marijuana was his. And there wasn’t much in the way of precedent to establish that drugs found inside a car amounted to grounds for terminating someone when there was no indication he had ever used drugs at work or ever reported to work under the influence of drugs.

On a different subject altogether, I handled an age discrimination case against a trucking company where there was a manager who thought my client was too old to be a driver and didn’t hesitate to communicate that in front of other employees. My client was fired for a minor driving accident, which would not have typically resulted in the termination of a driver. The case was settled on terms we thought were quite favorable. And I had a case where an employee was fired for refusing to fire somebody else who declined to take a lie detector test. It’s illegal to require someone to take a lie detector test, and my client was told to fire an employee who exercised his right to decline such a test. My client told the president of the company it was illegal for him to fire this person and, in turn, my client was fired. My client won a verdict on the basis his firing was contrary to the public policy of the state of California.

Q. How common is it for somebody to get fired?

A. Exceedingly common. People who feel they have been improperly terminated call up virtually on a daily basis. Nearly everyone who is fired feels that it was improper or unfair, but the real question is how many have a legal remedy, because what’s unfair does not equal what is unlawful. I don’t have a percentage for you, but a small percent of the unfair terminations fall into categories where the law provides a remedy.

Q. So what are the different categories?

A. The primary area is in civil rights laws covering age, race, sex, religion, national origin and physical handicap. Firings based upon any of those categories is prohibited based upon the Fair Employment and Housing Act, which is a California statute. Discrimination on the basis of sexual orientation is not prohibited by the terms of the acts but there are serval cities that have municipal ordinances that prohibit discrimination against gays and lesbians, including Laguna Beach, Los Angeles and San Francisco.

Q. What if the reason for somebody’s dismissal doesn’t coincide with one of the civil rights classifications?

A. There are a number of individual pigeonholes. It’s illegal to fire someone because they have brought a wage claim before the labor commission. It’s illegal to fire an employee for disclosing his wages to a fellow employee. You cannot be fired for reporting to state or federal authorities any illegalities that you plausibly believe are occuring at your employer. For example, if you think your employer is violating environmental laws by dumping petroleum products into sewers instead of disposing of them in a proper manner and your employer fired you for blowing the whistle on them, that would be unlawful. If you are fired because you attempt to organize a union, that is unlawful under the National Labor Relations Act. If you are fired by the company to try and deprive you of your pension, that is prohibited under the Employee Retirement Income Security Act. Finally, if you are fired because you performed jury service when summoned, that is unlawful.

Q. What if you were simply fired without warning or good cause?

A. The category most people fall under is that involving an expressed or implied employment contract which limits the employer’s right to terminate. For instance, if an employer has a progressive discipline policy requiring warnings or other procedures prior to termination but does not follow that, an employee can bring a contract-based action for improper termination.

Q. How can an employee find out whether his or her company has such a policy?

A. Many employers issue employee handbooks which would contain such a policy. And if you’re a supervisor you have probably received instruction from your employer as to the discipline of employees. If a policy is not in your employee handbook, ask your supervisor or the personnel department.

Q. Besides what’s contained in the employee handbook, are there other things a company does that imply a contractual relationship?

A. Aside from written policy there is also the issue of actual practice. Even if there is not a piece of paper that says a company will follow progressive discipline but the way the employer disciplines employees amounts to a practice of progressive discipline, then employees are entitled to be treated in the same manner. There is an aspect of what’s called the implied covenant of good faith and fair dealing which holds that like cases should be treated alike. For example, if employees who are tardy or absent are normally cautioned at least two times before being fired and a prospective client walks into my office and says he was absent once and was fired for that absence and there had been no other infractions committed by him, the employer would not be treating like cases alike.

Q. What about performance appraisals?

A. Verbal and written communications by superiors are important. For example, if your boss told you that you had a bright future with the company and you bypass opportunities elsewhere, that would strengthen the claim for you based on an implied contract. Make sure performance appraisals are done because they will document whether you are or are not doing a good job and that is another factor looked at in implied contract cases. If you have a series of favorable evaluations and then all of a sudden you are told your performance warrants termination, that is not going to carry the day unless they can show some very specific misdeeds on the employee’s part. The handbook, appraisals and length of service are all building blocks of an implied contract.

Q. Should an employee ask to see his personnel file if he smells trouble?

A. Yes. Every employee in California has a statutory right to inspect his personnel file and ought to exercise that right so the employee knows whether he or she has been written up. The employee should send a written response to the head of the personnel department and ask that a copy be placed in his personnel file while the incident is fresh in his mind and he has an opportunity to clear it up. Because employees come and go, it might be important for the employee to speak to other employees at the time this occurs because other employees’ input may be critical to substantiating the employee’s version of the incident.

Q. Are there some firings that cannot be challenged in court?

A. If an employee was truly what is called “at will,” that employee can be let go for no reason. Someone who is an at-will employee doesn’t have a contract, implied or expressed. The United States is very unusual in that regard among Western nations. In Western Europe there typically must be some legitimate basis for termination. Otherwise, employees can obtain some monetary compensation. But in California, if an employee is truly at will and doesn’t fall into any of the pigeonholes of the civil rights laws or specific statutory prohibitions, he can be fired because the employer wakes up on the wrong side of the bed.

Q. Are at-will firings common?

A. I screen out many more cases than I accept because the circumstance don’t seem to be such that the law will provide a remedy. There are many times when people describe circumstances which strike me as unfair but they don’t have any legal recourse.

Q. How soon must a fired employee decide whether he will sue?

A. It’s important for individuals to act in a timely manner because even if you fall into a category where the law would permit relief, if you wait too long you lose your rights. The time frames for each statute vary but an employee should never let a full year lapse before proceeding against an employer. Ideally, you should act more promptly than that, while witnesses are available and recollections are fresh. Employment cases are almost always hard-fought. And employers typically have much greater resources than individuals. The typical plaintiff is by definition unemployed and suffering disastrous financial consequences.

Q. Can an employee with a medical condition be fired?

A. When employees have been on a substantial medical leave because of a non-work-related condition which does not amount to a physical handicap, they can be fired. The man in the street feels it’s grossly unfair, yet there is nothing unlawful about it. Take somebody who was seriously injured but not crippled in an automobile accident that wasn’t work-related. The person is not considered handicapped in the strictest sense of the law because they don’t have a permanent disabling condition. The employer might say you are fired because it won’t wait until you are ready to come back and the employee has no recourse. The person may be entitled to state disability insurance but that doesn’t force the employer to retain the employee. Those two are not tied together.

Q. How much is the fired employee going to have to spend on legal fees?

A. Typically employment attorneys, including me, handle cases on a contingency basis. And that’s another reason why it’s important for plaintiff practitioners to carefully evaluate cases. You can’t make a living unless you win a fair percentage of the time. If there is a valid claim, I’m willing not to bill the client but take a contingency when and if we prevail.

Q. Is there anything an employee can do to make a wrongful termination case airtight?

A. The best thing to do if you can is to have an expressed contract, and almost the only time you will get that is when you are coming on board with a company because that is the honeymoon period when an employer wants someone with a specific skill or talent. Short of that, it’s important for an employee to document any agreement or promises that an employer makes. Take a sales employee who is told verbally that if he reaches $150,000 in sales in a specific time period he will receive an extra 10% bonus. If I were that employee I would write a memo to that effect and send it to the person who sent it to me--”In accordance with our discussion if I reach X dollars in sales I will be entitled to X percent extra commission.” So as not to be too crass, because tact is always important, the employee might do that in the text of a memo about the extra sales efforts they intend to pursue to achieve the company’s goal.

Q. What kind of employees realistically could get such an agreement?

A. I think executives are the people who typically have an agreement of this type.

Q. What should prospective employees look for in an employer?

A. Employees considering joining a company should ask the personnel department to see a copy of the employee handbook and procedures. Carefully read what that employer says in its official documents regarding how it’s prepared to treat its employees. Also, employees should be very wary of forms placed in front of them which may vary from what they have been told are the terms of their employment. For example, a manager recruiting an engineer from another aerospace company may make all sorts of promises regarding bonuses, career opportunities, et cetera, and yet the day they come on board they may have a document placed in front of them saying something like, “I am aware no one has authority to make any promises to me regarding length of employment and I can be terminated at any time for any reason.” Six or seven months later, that employee is fired under circumstances which the employee believes to be unlawful and, lo and behold, the management lawyer takes out Exhibit 1, this preprinted form which says the employee can be fired any time for any reason and says “Didn’t you sign this,” and “Of course you read it and understood it, didn’t you?” If you are asked to sign such a document, read it very carefully and scratch out anything that contradicts what has been promised you.

Q. Should a fired employee accept severance pay if he is thinking of suing?

A. Employers do not have a legal obligation to pay severance. The fired employee presented with a severance package needs to assess whether the money being offered is worth accepting in exchange for giving up your potential claims. The average employee would probably need to consult counsel to determine whether they had a claim and its likely worth compared to the severance package being offered.

Q. If your case does go to trial, how much can you win in damages?

A. That depends on the law the suit is based on. In an implied contract claim, punitive damages--those designed to punish and deter similar treatment in the future--are not available to you regardless of the outrageousness of the employer’s conduct. You can get all out-of-pocket losses--lost wages and lost benefits plus any catastrophic losses which flowed from the termination. For example, an employee out of work might lose his home because he can’t make the mortgage payments. Emotional distress damages can also be pursued if such distress foreseeably resulted from the termination. Under the Fair Employment and Housing Act, you can get everything I just described plus punitive damages and attorney’s fees. So if a person was sexually harassed at work and brought a claim under the FEHA, the remedies are potentially much greater than someone whose contract was breached.