All employers throughout California operate under the presumption that employees are employed “at will,” meaning either the employer or the employee may terminate the employment at any time and without reason or prior notice.
Exceptions to Employment at WillWhile that is true, employers should still terminate employment based on "a fair and honest cause or reason, regulated by good faith on the part of the employer." The California labor code is in place to protect employees from being discriminated against and fired for being a part of a minority group. With that in mind, there are exceptions to employment at will in California. As with many of California labor laws, there are exceptions to at will employment. These exceptions include:
1. Public-sector employees whom are protected by civil service laws and/or by a "memorandum of understanding" between the union and the agency that addresses discipline and termination;
2. Employees who are represented by unions and covered by a collective bargaining agreement;
3. Employees who have written contracts that include a "good cause" for termination provision; and
4. Employees who employers have said or done something that negate the presumption of employment at will.
In some cases, employees cannot be fired if the company has a "progressive discipline" policy in place. This type of policy mandates that an employee be given a certain amount of warnings or lesser sanctions prior to being fired; if they are not given the stated amount of warnings, the employee is not eligible for termination. Additionally, some managers or employers imply upon hire that the employee can expect long-term employment with the company. If this is the case, the employee may not be eligible for at will employment.
How to Reinforce Employment at WillIf you want to retain your employment at will rights as an employer, we recommend you do the following:
1. Include an enforceable employment at will statement in the employment application, offer letters, and subsequent documents;
2. Include an enforceable employment at will acknowledgement in new hire paperwork;
3. Include an enforceable employment at will statement in the employee handbook;
4. Make sure managers and department heads do not make careless assurances of job security during job interviews or in response to questions from employees or applicants; and
5. When presented with an employment verification form or a mortgage application, avoid answering any questions that inquire as to the future employment status of the employee.
Limitations of Employment at WillEmployment at will is not meant to allow the employer to commit employment wrongs such as discrimination, retaliation, and violations of specific statues, including those protecting whistleblowers.