Why Firing an Employee for Off-Duty Conduct May be Illegal

The San Diego Tribune reported in May 2018, that a local jury awarded a former employee nearly $18 million for wrongful termination. The jury found that the employer, Allstate, wrongfully fired the employee, Mr. Michael Tilkey, when it learned he was arrested for threatening his girlfriend – even though all the charges were eventually dismissed. Allstate fired the employee because it had adopted a strict no tolerance policy.

The jury awarded $2.6 million in actual damages and nearly $16 million in punitive damages.

Mr. Tilkey had worked for Allstate for nearly 30 years. Mr. Tilkey claimed that Allstate had fired him in violation of a state labor law which forbids employers from considering arrests – unless that arrest results in a conviction – when deciding to fire an employee. The aim of the punitive damage award and the civil damage award is to send a message to corporations that there will be consequences for not following California law.

The firing took place in 2015, nine months after an Arizona arrest following an argument with his girlfriend at that time. The woman claimed he banged forcefully on the door of a home after a dispute. He was arrested for domestic violence and possession of marijuana paraphernalia. Two charges were dismissed early. One domestic violence charge was dismissed after Mr. Tilkey completed an anger-management course – as part of a plea agreement.

Allstate learned of the charges through an email the girlfriend sent him at work. “The email was flagged as part of a compliance review for employees who are subject to financial industry regulations.”

Allstate conducted an examination where it learned of the arrest and the plea deal. It didn’t fire Mr. Tilkey then. The company fired him after the former girlfriend sent the company an email, “accusing him of threatening her during the Arizona incident and asking for an investigation.”

Allstate claimed that Mr. Tilkey was an at-will employee who could be fired for violating the company policy that permits immediate firing for any employee “who engage in threats or acts of physical harm or violence.”

Mr. Tilkey said other companies wouldn’t hire him when they learned why he had been fired.

The employee claimed that he was wrongfully terminated – in violation of California Labor Code 432.7. That law forbids firing based on arrest without a conviction.

Our experienced trial lawyers represent clients in wrongful termination lawsuits

There are state and federal laws that govern when employers can fire you and when they can’t. If an employer wrongfully fires someone, the employee can seek reinstatement, back pay, back benefits, and any statutory damages that apply. The worker may also be entitled to punitive damages. For help with any wrongful firing case, call the law office of Stephen Danz & Associates today. You can reach us at (877)789-9707 to make an appointment. Se Habla Espanol.