Include express language in the employment application and all other relevant in-take documentation, confirming that the employment is not for a specified period and that it may be terminated at will at any time, with or without cause, by either the employer or the employee.
Consider implementing a mandatory arbitration program whereby the employee (and the employer) agree that any disputes that may arise between them will be resolved by way of arbitration and not in court before a jury. Note that there are very specific requirements in some states, including California, for implementing an enforceable arbitration regime. While it may not be in the employer's best interest to seek arbitration in every case, having the employee sign such an agreement at the outset of the employment relationship is generally a good strategy.
Provide employees with regular, frank performance evaluations in writing
Design and implement a comprehensive system for regularly evaluating the performance of employees. Set forth (in writing) the employee's strengths and weaknesses in a cogent, honest and straightforward manner. Managers should complete in writing and deliver orally performance evaluations at least once every 12 months. HR should confirm that all evaluations deliver a relatively consistent message and that they do not include extraneous information that is unrelated to the employee's performance. Evaluations should accurately identify not only an employee's strengths but also his or her weaknesses. Many employers fall down here when they seek to terminate an employee for performance-related reasons shortly after s/he has received a glowing evaluation reflecting no problems whatsoever with the employee's performance. The final (favorable) performance evaluation will then become the centerpiece of the former employee's challenge to the termination.
Confirm the adequacy of documentation supporting a termination
Whether the employee is being terminated for poor or deficient performance, affirmative misconduct or as part of a reduction in force, it is vital that the supporting documentation accurately reflect the legitimate, non-discriminatory business reasons for the termination. Employees have very little trouble finding their way into a "protected category" (whether as an alleged whistleblower or because of some other legally-recognized characteristic). Therefore, it is not unusual for an employee to claim that the alleged business reason for the termination was "mere pretext," which was used by the employer to cover-up a more sinister (and illegal) motivation. Employers are best able to meet this challenge by fully and completely investigating the basis for a termination (before it has been effected) and by contemporaneously documenting the fact of and the basis for the decision.
Additional resources provided by the author
Subscribe to our regular updates on California employment law, which are distributed by email every other month.
Our Rating is calculated using information the lawyer has included on their profile in addition to the information we collect from state bar associations and other organizations that license legal professionals. Attorneys who claim their profiles and provide Avvo with more information tend to have a higher rating than those who do not.
What determines Avvo Rating?
Experience & background
Years licensed, work experience, education
Legal community recognition
Peer endorsements, associations, awards
Legal thought leadership
Publications, speaking engagements
This lawyer was disciplined by a state licensing authority in .
Disciplinary information may not be comprehensive, or updated. We recommend that you always check a lawyer's disciplinary status with their respective state bar association before hiring them.