Is at-will employment a myth?

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

The reality is much more complicated. Over time, various 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 at-will doctrine will protect him against a wrongful termination lawsuit.

Implied agreement

Employment at will can be denied by an implied agreement not to fire an employee without good cause. Written or verbal statements from the employer regarding continued employment, other statements from the employer that create an expectation of job security, or the establishment of a progressive disciplinary policy may create such an implied agreement.


An employer cannot fire an employee because of race, gender, age, religion, ethnicity, national origin, disability, or sexual orientation. Because the protected features are so numerous, one or more of them will likely apply to most employees. Therefore, an employee will often be in a position to at least claim that a dismissal is based on unlawful discrimination.

Public politics

An employer may not fire an employee in violation of a fundamental and substantial public policy. These cases generally involve layoffs based on an employee:

  • Refusing to break the law at the request of the employer;
  • Compliance with a legal obligation;
  • Exercising a constitutional or statutory right or privilege (for example, seeking a reasonable accommodation for a disability; taking medical, pregnancy, or legal family leave; filing a workers’ compensation claim); gold
  • Complain or report a legal violation (for example, employment discrimination, sexual or racial harassment, wage or overtime violations, workplace safety violations).

Burden of proof

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

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

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