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At-will employment: when the job isn’t guaranteed

Attorney Joe Richardson explains the rights and responsibilities of at-will employment

The rights and responsibilities of at-will employment

Most people that work are at-will employees, meaning, there is no guarantee as to the length of the work relationship.  Either the employee or the employer may decide to “go into another direction” at any time.  An employee may decide to quit, or take another job; an employer may decide to change course with no notice, or without “just cause.”

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“Legal Learning” is commentary by Joe Richardson, Esq. The column does not constitute legal advice, as individual cases turn on their particular facts.

Excluded from the at-will employment characterization are collective bargaining agreements and actual written contract agreements. If, upon the ending of your employment, you are not entitled to anything more than your vacation pay and whatever final wages you are due, you are most likely an at-will employee. If someone has a contract for a specific period of time, the contract states each party’s obligations if the relationship ends before the time stated in the contract.  (Yes, you guessed it, professional athletes would not be at-will employees!)

Even in “at-will employment” relationships an employer cannot terminate an employee for an illegal reason. Such reasons would include discrimination, retaliation, or harassment based on, among other things, age, religious creed (including religious dress and grooming practices), mental or physical disability, race, national origin, sex, and sexual orientation.  Furthermore, a termination can be actionable if it is in reaction to an employee complaint of illegal activity at the workplace. Such a complaint does not have to be correct; it just needs to be based on the employee’s reasonable belief. Also, a termination in reaction to an employee exercising their workers compensation rights related to a work injury can also be a problem for an employer.

For Employers

Employers should have the “at-will employment” designation in writing from the time a potential employee applies and on other documentation the employee signs. Further, keep detailed employee personnel files so that the steps leading to any decision regarding an employee (including termination) are well-documented. Even with at-will employment, an ill-timed or poorly documented employment decision can create potential legal liability.

For Employees

Just because an employer has you “sign something” at the beginning of the employment does not take you out of the at-will employment realm. If you feel that an adverse employment decision has been made for a discriminatory reason, you must generally make a claim under the California Fair Employment and Housing Act (FEHA), or the Federal Equal Employment Opportunity Commission (EEOC).  Any concerns about perceived illegal or inappropriate activity should be made and/or confirmed in writing.

Joe Richardson, Esq. is a native son of South-Central Los Angeles, and an attorney practicing tort, contract, and labor, and employment law in Southern California for more than 15 years. He also teaches and speaks on legal issues.

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