California has employment at will, which means that either the employer or the 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 implied agreements to the contrary. Additionally, an employer may not terminate an employee for discriminatory or retaliatory reasons. As a result of these exceptions, employers often find themselves subject to claims by laid-off employees.

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

DO include repeated at-will 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 reaffirmed along with any provision 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 terminated must be accompanied by a disclaimer that the list is not exclusive and that employment is always 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 inconsistent with at-will employment, 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 will always have a home here.”

NOT have Trial Periods or Permanent Employees

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

Does NOT have a progressive discipline program

Arguably, a progressive discipline policy creates an implied contract between employer and employee, requiring the employer to follow all steps in the policy before terminating an employee. The practical result is that the employee can no longer be summarily discharged, as would be permissible with at-will employment.

YES Be aware of anti-discrimination laws

An employer should take special care 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, whistling). blew it). In such cases, an employer must be prepared to establish good cause for termination, notwithstanding 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 a competent professional periodically review its employment documents and practices. And because of the risk of wrongful termination claims, an employer should consult with legal counsel before terminating employees.