Is at-will employment a myth?

Website design By BotEap.comCalifornia law provides for at-will employment unless otherwise agreed. As a result, an employer may believe that he is free to fire an employee at any time for any or no reason.

Website design By BotEap.comThe reality is much more complicated. Over time, a variety of limitations and exceptions to at-will employment have accumulated. An employer who decides to fire a worker should not have a false sense of security that the at-will doctrine will protect them against a wrongful termination lawsuit.

Website design By BotEap.comimplicit agreement

Website design By BotEap.comAt-will employment may be denied by an implied agreement not to fire an employee without good cause. Written or verbal representations by the employer regarding continued employment, other statements by the employer that create an expectation of job security, or the establishment of a progressive disciplinary policy may create such an implicit agreement.

Website design By BotEap.comDiscrimination

Website design By BotEap.comAn employer cannot fire an employee because of their race, gender, age, religion, ethnicity, national origin, disability, or sexual orientation. Because the protected characteristics are so numerous, it is likely that one or more of them will apply to most employees. Therefore, an employee will often be in a position to at least claim that a termination is based on unlawful discrimination.

Website design By BotEap.comPublic politics

Website design By BotEap.comAn employer may not terminate an employee in violation of fundamental and substantial public policy. Such cases usually involve terminations based on an employee:

• Website design By BotEap.comRefuse to break the law at the request of the employer;
• Website design By BotEap.comExecution of a legal obligation;
• Website design By BotEap.comExercise a constitutional or statutory right or privilege (eg, seek reasonable accommodation for a disability; take legal medical, pregnancy, or family leave; file a workers’ compensation claim); gold
• Website design By BotEap.comComplain or report a legal violation (eg, employment discrimination, sexual or racial harassment, wage or overtime violations, workplace safety violations).

Website design By BotEap.comBurden of proof

Website design By BotEap.comThe at-will doctrine is further undermined by the way the burden of proof is assigned in wrongful termination laws. The employee has the initial burden of establishing that (1) he or she is in a class protected by the “discrimination” or “public policy” principles discussed above, and (2) there is some causal connection between his or her protected status and the termination of employment (for example, the termination occurred shortly after the employee filed a workers’ compensation claim or complained of labor law violations). If the employee meets that burden, then the burden passes to the employer to present a legitimate non-discriminatory reason for termination.

Website design By BotEap.comIn light of these limitations, “employment at will” can often be more myth than reality. Therefore, an employer must follow carefully designed employment practices to decrease the risk that a terminated employee will successfully sue.