Is at-will employment a myth?

California law provides for at-will employment unless otherwise agreed. As a result, an employer may believe that he is free to fire an employee at any time for any or no reason.

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

implied agreement

At-will employment may be denied by an implied agreement not to fire an employee without good cause. Written or verbal representations by the employer regarding continued employment, other statements by 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 their race, gender, age, religion, ethnicity, national origin, disability, or sexual orientation. Because the protected characteristics are so numerous, it is likely that one or more of them will apply to most employees. Therefore, an employee will often be in a position to at least claim that a termination is based on unlawful discrimination.

Public politics

An employer may not terminate an employee in violation of fundamental and substantial public policy. Such cases usually involve terminations based on an employee:

  • Refuse to break the law at the request of the employer;
  • Execution of a legal obligation;
  • Exercise a constitutional or statutory right or privilege (eg, seek reasonable accommodation for a disability; take legal medical, pregnancy, or family leave; file a workers’ compensation claim); gold
  • Complain or report a legal violation (eg, 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 laws. The employee has the initial burden of establishing that (1) he or she is in a class protected by the “discrimination” or “public policy” principles discussed above, and (2) there is some causal connection between his or her protected status and the termination of employment (for example, the 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 passes to the employer to present a legitimate non-discriminatory 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 employment practices to decrease the risk that a terminated employee will successfully sue.

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