Got The Job But No Call About Orientation Site Www.Reddit.Com Is At-Will Employment A Myth?

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Is At-Will Employment A Myth?

California law provides for work at will unless there is an agreement to the contrary. As a result, an employer may feel that it is free to fire an employee at any time and for any reason or no reason.

The reality is much more complicated. Over time, a number 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 doctrine of agency will protect him from a wrongful termination suit.

Implied agreement

At-will employment can be voided by an implied agreement not to fire an employee without cause. Written or verbal representations by the employer about continuity of employment, other representations by the employer that create an expectation of job security, or the establishment of a progressive disciplinary policy may create such an implied agreement.

Discrimination

An employer cannot fire an employee because of his or her race, gender, age, religion, ethnicity, national origin, disability or sexual orientation. Because there are so many protected characteristics, one or more of them are likely to apply to most employees. Therefore, an employee will often be able to at least claim that a termination is based on unlawful discrimination.

Public order

An employer cannot fire an employee in violation of a fundamental and substantive public order. Such cases typically involve layoffs based on an employee:

  • Refuse to break the law at the request of the employer;

  • Execution of a legal obligation;

  • Exercising a constitutional or statutory right or privilege (for example, seeking a reasonable accommodation for a disability; taking legal medical, pregnancy, or family leave; filing a workers compensation claim); or

  • Claim or report a legal violation (for example, employment discrimination, racial or sexual harassment, wage or overtime violations, workplace safety violations).

Burden of proof

The will doctrine is further undermined by the way the burden of proof is assigned in wrongful termination lawsuits. The employee bears the initial burden of establishing that (1) he or she is in a class protected by the principles of “discrimination” or “public order” discussed above, and (2) there is some causal connection between his or her protected status and termination of employment (for example, the termination occurred shortly after the employee filed a workers’ compensation claim or complained about labor law violations). If the employee satisfies that burden, then the burden shifts to the employer to give a legitimate non-discriminatory reason for the dismissal.

Given these limitations, “work at will” can often be more of a myth than a reality. Therefore, an employer must follow employment practices carefully designed to reduce the risk of being successfully sued by a terminated employee.

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