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Is it illegal to hire an employee, knowing that you will fire them within 95 days and replace them with a former empolyee?

San Jose, CA |

I started at a job in October. I was hired with a 90 probation period. The employee that I was replacing left supposedly to get a "part time, less stressful job". My job was Accounting, Contracts and Human Resources work. I asked the owner if I needed to have the employee leaving to sign any documents, since she was leaving. He said no that he would take care of it. It was never done. Is this a problem?

Attorney Answers 3


  1. I don't see any present or future legal problem.

    Also, I would not over-estimate the passing of the 90 day probation period. That gives you no extra legal employment rights unless a written contract says otherwise.

    David Mallen

    David A. Mallen offers answers on Avvo for general information only. This offer of free, general answers is not intended to create an attorney-client relationship. If you need specific advice regarding your legal question, you should consult an attorney confidentially. Many experienced California labor and employment attorneys, including David A. Mallen offer no-risk legal consultations to employers and employees at no charge. David A. Mallen is licensed to practice law before all state and federal courts in California, as well as the California Labor Commissioner and the California Unemployment Insurance Appeals Board. Failure to take legal action within the time periods prescribed by law could result in the loss of important legal rights and remedies.


  2. Most employment has no commitment as to the length of time. It is considered to be an "at-will" relationship, which means it can end at any time at the will of either the employer or employee. Very few people are hired with a guarantee of how long the employment will last and those who do have such agreements, generally have the commitment in writing. In your case, you may wish to check any correspondence you received from the employer offering you the job or confirming your employment or any employee handbooks or personnel manuals available to you to see what its policies are about how the employment may end.

    If you are suggesting this employer offered you the job knowing, at the time it was offered, they had no intention of keeping you beyond 95 days but failed to tell you about it, you may be able to make a claim for fraud if you can show detrimental reliance. In other words, you quit another job or relocated your residence in order to accept this job with the reasonable expectation it was long term. These are very difficult case to prove but if you find yourself in this situation, you should consult with an experienced employment law attorney for a more informed legal opinion.

    They say you get what you pay for, and this response is free, so take it for what it is worth. This is my opinion based on very limited information. My opinion should not be taken as legal advice. For true advice, we would require a confidential consultation where I would ask you questions and get your complete story. This is a public forum, so remember, nothing here is confidential. Nor am I your attorney. I do not know who you are and you have not hired me to provide any legal service. To do so would require us to meet and sign written retainer agreement. My responses are intended for general information only.


  3. If the employer misled you into quitting another job, relocating, or incurring some other loss in order to accept this job, you may have a claim for promissory estoppel, which is similar to the detrimental reliance issue raised by Mr. Kirschbaum. This doctrine allows a court to enforce a promise in the interest of justice if all of the following elements are present:

    -- one party makes a gratuitous promise to another (that is, a promise it was not required to make, such as a job offer); AND
    -- a second party changes its position, circumstances or actions in reliance on that promise (moves, quits another job, etc.); AND
    -- that reliance was reasonable; AND
    -- the second party was harmed due to its changed position, circumstances or actions.

    In a promissory estoppel situation, a court could determine the (potential) employer was at fault for causing you to change your life in the expectation of a job.

    Terms in an offer letter may make a difference. For example, the letter may contain "waffle words," such as "The employer can withdraw this offer at any time" or "This offer does not guarantee employment," or "This offer is contingent on passing a qualifying exam" or other similar language.

    The interactions between the parties are also significant. It is helpful if there are written communications, such as e-mail messages, that show the employer knew you were relying on the promise. For example, if you told the employer that you were resigning your other job, relocating, or making other changes in your life because of your pending employment with the employer, these communications would support a claim for promissory estoppel.

    The devil is in the details, so you must present your facts to an attorney who can give you the dedicated attention your situation deserves.

    Other than that, I don't see any potential legal issues raised by your facts, unless you had to relocate to take this job. If so, Labor Code 970 generally prohibits an employer from lying to induce an employee to relocate for a job.

    California employment law tips in favor of the employer. Employees and job applicants have very few employment rights, and employers have a lot of leeway in how they choose to run their businesses. In general, an employer can be unfair, obnoxious or bad at management. And an employer can make decisions based on faulty or inaccurate information. An employer has no obligation to warn an employee that he or she is not performing as the employer wants. It’s not a level playing field. An employer hires employees to provide work for its benefit, not for the benefit of the employees. Don't expect the employer to take care of its employees; it doesn’t have to and it rarely does.

    There are some limitations on what an employer can do, mostly in the areas of public policy (such as discrimination law or whistle blowing), contract law, union-employer labor relations, and constitutional due process for government employees. Please see my guide to at-will employment in California which should help you understand employment rights: http://www.avvo.com/legal-guides/ugc/an-overview-of-at-will-employment-all-states. After you take a look at the guide, you may be able to identify actions or behavior that fits one of the categories that allows for legal action. If so, an experienced plaintiffs employment attorney may be helpful.

    Employment rights come from the state and federal legislatures. One of the best things people can do to improve their employment rights is vote for candidates with a good record on pro-employee, anti-corporate legislation. Another way to protect employment rights is to form or affiliate with a union, or participate in a union already in place.

    I hope you can resolve your situation and wish you the best.

    twitter.com/MikaSpencer *** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***

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