Dear Quentin,
I was terminated after seven years of stellar employment. I provided feedback on a toxic co-worker who threatened me as I sat at my desk. During my tenure, I received accolades, merit increases and promotions. Part of my job was to negotiate and sign contracts on behalf of the organization.
Some of these contracts listed me as the beneficiary of perks, such as hotel points, to be issued at the conclusion of the event. Now that I have been let go, the hotel has informed me that my former employer instructed them not to issue the concession(s) to me given that I am no longer employed by the company.
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The contract(s) did not include any stipulation that the signer must remain an employee of the company in order to receive the contracted perks. Does my former employer have the authority to request I not receive benefits I negotiated while I was employed — or could this be considered tortious interference?
What kind of threats could allow me to take my company to court for unfair dismissal? And are the contracts I signed still valid even though I no longer work for the company?
Fired & Tortured in San Diego
Dear Fired & Tortured,
The loss of your hotel points and perks may be a red herring.
I urge you to look at the reasons for you being fired and not at the relatively minor ramifications. You were threatened, bullied and possibly harassed — and after speaking up about it, you were fired. From your telling, you excelled at your job, and your performance can be measured in terms of pay raises, promotions and other commendations.
California is an employment-at-will state, meaning that the employer and employee are free to terminate the employment contract at any time, with no penalty and no notice being assessed to either party unless you previously agreed to separate terms. No notice needs to be given by either party. If you were a member of a labor union, the rules in the union contract would naturally apply.
The Civil Rights Act contains seven protected classes: race; color; religion; sex, including pregnancy, sexual orientation and gender identity; national origin; age (for employees 40 or older); disability; and genetic information, including family medical history. (It does not cover political speech or affiliation.)
The law also prohibits harassment against individuals “in retaliation for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or lawsuit under these laws; or opposing employment practices that they reasonably believe discriminate against individuals, in violation of these laws,” according to the Equal Employment Opportunity Commission.
“Offensive conduct may include, but is not limited to, offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance,” the EEOC adds. But “petty slights, annoyances, and isolated incidents” don’t rise to the level of illegality.
Other things, such as political views, are not covered under the legislation, unless they overlap with a protected characteristic. With a fractious political climate over topics including immigration, what books are read in school and the war in Gaza, employment-law attorneys warn employees to be careful what they say, tweet and write.
California harassment law
However, California harassment law is broader than most people realize. It “encompasses abusive behavior not just on the basis of categories like race and sex — but also on the basis of less well-known protected categories like a medical condition, military status, age, and gender expression,” according to Freeburg & Granieri, a law firm in Pasadena.
“If your complaints about bullying lead to you losing your job, you may have rights under California ‘wrongful termination’ or Fair Employment and Housing Act retaliation laws,” the law firm adds. “Or if the bullying or unlawful conduct you experience includes wage/hour or overtime violations, you have legal rights with respect to those as well.”
You have the right to report such behavior without fear of backlash. “Retaliation, or punishment for reporting harassment, is illegal under California law,” says Sanford A. Kassel, a law firm based in San Bernardino. “If you choose to file a complaint with the California Department of Fair Employment and Housing (DFEH), they will investigate the matter on your behalf.”
The law firm adds: “If necessary, you can also file a lawsuit against your employer. Remember, you are standing up for yourself and others who may be experiencing similar mistreatment in the workplace. You are not alone, and resources are available to support you in navigating this difficult situation.” (It is more challenging, however, if the case does not include the aforementioned protected characteristics.)
Two types of tortious interference
There are two types of tortious interference: tortious interference with contract and tortious interference with prospective economic advantage. As their names suggest, a contract exists with the former and does not exist with the latter. So you either had a separate contract with this hotel chain or, more likely, if a contract existed, it was part of your former employment.
A company may steal a contract from a former employee or, say, a former employee could use confidential information or insider knowledge to interfere with a company’s business in order to steal it for themselves. This could be done by damaging the goodwill and trust in the relationship in a way that does not quite rise to defamation in the legal sense.
“Damages in such cases stem from clear proof of lost business, existing or prospective, of the victim-business,” says the Linden Law Group. “This can be shown with financial or bank statements, profit and loss statements, tax returns, and other evidence showing a decrease in business caused by the bad acts of the insider or third-party.”
Even if the contract did not explicitly state that you did not have to be an employee to receive hotel rewards and perks, it could be that this condition was implicitly stated in the contract. An example of “implied contract terms” could be based on the conduct and relationship of the parties involved. You carried out these duties as part of your working relationship.
An employment-law attorney could, of course, look into both the circumstances surrounding your dismissal and whether they overlap with any of those aforementioned protected classes, and could also give you advice on whether the cancellation of this contract, if that’s what it was, with the hotel chain constitutes tortious interference by your former employer.
Be careful. This experience is still raw, and hiring an attorney to deal with your grievances may feel like your only option for exercising retribution on a company that you believe treated you unfairly. But given the legal standard you would have to meet and the expense involved, it does not — on the face of it — seem wise to sue over hotel points.
You would probably be better off using a bulldozer to swat a fly.
Previous columns by Quentin Fottrell:
