How to preserve employment at will

California is employment at will, which means the employer or employee can terminate the employment relationship at any time, with or without cause, reason, or notice.

But the voluntary presumption can be denied by express or tacit agreements to the contrary. Also, an employer cannot fire an employee for discriminatory or retaliatory reasons. As a result of these exceptions, employers often find themselves subject to claims by terminated employees.

An employer can adopt several strategies to maintain a deal at will and protect itself against wrongful termination laws. Here are some of the key do’s and don’ts:

DO include repeated voluntary statements

Job applications, offer letters, employee handbooks, performance reviews, and other employment-related materials must clearly and prominently state the at-will policy. The policy must be restated along with any provisions that could be construed as conflicting with an at-will agreement. For example, any list of reasons in an employee handbook for why an employee may be fired must be accompanied by a disclaimer that the list is not exclusive and that employment is always held at will. It is difficult to repeat the policy at will too many times.

DO NOT give job security guarantees

An employer must train its managers not to inadvertently make verbal statements to employees that could be construed as contradicting employment at will, such as:

“If you continue to do good work like this, you can look forward to a long and successful association with the Company,” or

“As long as you do a good job, you’ll always have a home here.”

NOT have Trial Periods or Permanent Employees

The use of a “trial” period for new employees arguably creates the inference that an employee can only be fired for good cause once the period has been satisfactorily completed. Instead, an initial phase of employment should be called an “introductory”, “orientation”, or “training” period. Additionally, employees who complete the introductory period must be referred to as “regular” employees rather than “permanent” employees.

Does NOT have a progressive discipline program

Arguably, a progressive discipline policy creates an implicit contract between employer and employee, which requires the employer to follow all steps of the policy before firing an employee. The practical result is that the employee can no longer be summarily discharged, as would be permissible with employment at will.

YES Be aware of anti-discrimination laws

An employer should be especially careful before firing someone who is a member of a protected class (eg, based on race, age, ethnicity, or disability), or whose firing could be seen as retaliation for a protected act (eg, eg, whistle). blew it). In such cases, an employer must be prepared to establish good cause for dismissal, despite the state’s general presumption at will.

Conclusion

There are many pitfalls for the unwary in trying to maintain an employment-at-will policy. Accordingly, an employer should have her employment documents and practices periodically reviewed by a competent professional. And because of the risk of wrongful termination claims, an employer should consult with legal counsel before terminating employees.