How you choose to structure the relationship with your employees may help minimize your risk of litigation, or leave you vulnerable to opportunistic employees.

At-Will Employment
California is an "at-will" state. This means that, barring evidence to the contrary, an employment relationship is presumed to be at the will of both the employer and employee, and subject to termination by either party at any time, for any reason, with or without cause.

Wrongful Discharge
Judicial decisions and legislation have carved out exceptions to the at-will doctrine.

The Public Policy Exception: An employer may not fire an employee for any reason that violates a "well-established" public policy. Such public policies are contained in statutory provisions of the Fair Labor and Standards Act (FLSA), the Occupational Safety and Health Act (OSHA) and various similar state acts that prohibit terminations based on the employee's exercise of his or her rights under such acts.

For example, it is illegal to discharge an employee for such things as:

  • Refusal to commit an unlawful act
  • Accusing the company of committing an unlawful act
  • Complaining about work procedures or health and safety violations
  • Filing legitimate workers' compensation claims
  • Missing work to serve on a jury or for military leave
  • Voting for or joining a union

An employer violating public policy may face both contract and tort damages, including damages for pain and suffering, and, in extreme cases, punitive damages.

Implied Contract of Employment: Another judicially created exception to the at-will presumption is based on a finding that the parties' conduct created an implied contract limiting the employer's ability to terminate the employee. This particular exception is a potential powder keg for employers. Courts have determined that various factors can override the at-will presumption and restrict the employer to terminating only for "good cause." Such factors may include a combination of:

  • Oral representations by managers and/or supervisors to the effect that the employee would only be terminated for good cause
  • The employee's tenure, and pattern of raises, promotions, and bonuses
  • Assurances from managers and/or supervisors that the employee is a valued (or even competent) employee
  • Personnel manuals, employee handbooks, performance evaluations, memos, and other written material suggesting that employees are only terminated for good cause, specific violations, or after a particular system of discipline