At-Will Employment Policies
When it comes to defending against a disgruntled ex-employee, there is no legal concept more valuable to a California employer than “at-will” employment. Ideally, under at-will employment, an employee may be terminated: at any time . . . without cause . . . without prior warning . . . for any legal reason . . . or for no particular reason at all. Where proper at-will employment prerequisites have been completed, the employer can simply inform the employee that “consistent with the terms of your at-will employment, management has made the decision to terminate your employment. The termination is effective immediately. Here is your final paycheck. Thank you for your service.” The entire process can be very simple.
While the above scenario may seem idealistic, it is real. It has been successfully and repeatedly used with confidence by thousands of California employers. What is the difference between those confident employers and others who find themselves dragged into court by disgruntled employees in search of an undeserved windfall? One of the differences may be in the use of effective policies and procedures to correctly establish your employees as true “at-will” employees.
Every California employer knows that, as much as they dislike terminating an employee, from time to time they will have to do so. Many employers live in fear that every termination is an invitation to a costly wrongful termination lawsuit. In truth, however, these risks can be minimized. In terms of avoiding employment lawsuits, employers would do well to protect themselves by taking steps to leave no ambiguity whatsoever that each employee is an “at-will employee” and can be terminated at any time, without cause, for any legal reason or for no particular reason at all.
The problem many employers face is that they do not unambiguously spell out the fact that each employee is an at-will employee. To set a proper standard, at-will employment must be established and supported from the first day of employment to the last. Another problem is that even when the employer declares that all employees are at-will, the employer may have other policies which are contrary to at-will employment. These contrary policies tend to cancel out the legal doctrine of at-will employment.
As an example of how employment policies can defeat at-will employment, let us take the use of the “probationary periods” many employers use for new employees. Under at-will employment, there is no purpose for a probationary period. If an employee is “at-will” from the first day of employment to the last, what could change after the probationary period? Think about it. If the employee is truly at-will, there can be no difference in the terms of employment from the beginning of employment to the end of employment. Probationary periods at the beginning of employment imply more job security exists after the probationary period than before. Such a concept is inconsistent with at-will employment, and should be eliminated in a true at-will employment situation.
The same concept applies to employer guarantees of “progressive discipline” (warnings, write-ups, suspensions, etc.) before a termination of employment can occur. Under truly at-will employment, there should be no such guarantees of progressive discipline. Guaranteeing progressive discipline is inconsistent with at-will employment because warnings, write-ups and suspensions must be given before many terminations can occur. If an employer promises to give progressive discipline, and then fails to do so before termination, the employer is at risk for a wrongful termination lawsuit. Promises of progressive discipline are therefore generally contrary to at-will employment and should be eliminated.
To properly establish at-will employment, Porter Law Group recommends a very clear at-will employment contract and consistent employee handbook. Both the handbook and contract must make it clear that any concept of “continued employment” based on “good performance” is denied. Concepts of “probationary periods,” “progressive discipline,” “warnings” and “write-ups” before termination can occur must be specifically avoided. Guarantees of “annual reviews” might also be avoided. These practices tend to contradict the concept of at-will employment.
If you wish to strengthen your status as an at-will employer, Porter Law Group can help you draft the contracts, handbooks, policies and procedures you need. We can provide management with written instructions in the use of these materials. The proper documents and policies will bolster your defenses against wrongful termination and other claims by disgruntled employees. Call us today – we’ll help you gain the essential protection your business needs.
