The Employment Lawyer Letters
"What is At Will Employment?" or "I thought after
my probationary period was past they couldn't fire me?"
The starting point for analyzing any employment contract is Lab C §2922,
which creates a rebuttable presumption that every contract of employment
is terminable at the will of either party, with or without a reason, at
any time. Thus, an employment contract in California will be terminable
at-will unless there is an express or implied contract term providing
that the employee can be terminated only on good cause. This is an
either/or situation: an employment contract is either an at-will
contract or a contract terminable only for cause.
The concept of a "for cause" employment contract is that
the employer will continue the employment relationship for so long as
the employee performs his job satisfactorily. Cause for termination will
either be unsatisfactory job performance, job-related misconduct, or
legitimate (nonpretextual) financial needs of the company, such as the
need to reduce the workforce.
Where it appears that the employment contract provided for at-will
employment (or where the client's case for a good cause contract, either
express or implied, is weak), there typically will not be a basis for
litigation unless the termination is in violation of public policy. It
is established law that although an employer may terminate an employee
pursuant to an at will contract for any reason or no reason, an employee
may never be terminated for an unlawful reason.
An employer's right to terminate an "at-will" employee is
subject to limits imposed by public policy. Otherwise, the threat of
termination could be used to coerce employees into committing crimes,
concealing wrongdoing, or taking other action harmful to the public
welfare. Termination of an employee in retaliation for resisting his or
her employer's violation of laws that secure important public policies
contravenes those policies and gives rise to a common-law tort action. [Blom
v N.G.K. Spark Plugs (U.S.A.), Inc. (1992, 2nd Dist) 3 Cal App 4th 382,
Recent case law has further eroded job longevity as a possible back
door around the at-will agreement.