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Employment Law: Firing Employees

Posted by attorney Sarah Wolk

When am I prohibited from terminating my employees?

California is an “at-will" employment state, which means that unless you have an employment agreement or policy to the contrary, you can fire your employees without cause at any time. However, this does not mean that you can terminate an employee for any reason. There are certain justifications that are illegal, such as discrimination, punishing whistleblowers, and punishing an employee who is exercising a legal right.

Discrimination: You may not fire an employee based on certain traits, including age, race, gender, disability, religion, national origin, ancestry, medical status, marital status, and sexual orientation.

Whistleblowers: You may not fire an employee who reports illegal activities or violations of laws, statutes, or administrative mandates.

Exercising Legal Rights: You may not fire an employee who is taking advantage of his or her rights. For example, if an employee properly requests and takes time off to vote, as is allowed by California Elections Code section 14000, an employer may not terminate that employee for doing so.

Regardless of an employer’s ability to terminate employees for most reasons at any time, it is still a good idea to maintain thorough personnel files on all employees with documentation of instances of misconduct or poor performance. Should an employee pursue legal action against you as an employer for wrongful termination based on one of the above prohibited bases for firing an employee, such documentation can be used to show a separate valid basis for your decision, which could shield you from liability.

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