Overview of “At Will” Employment in California

California is known as an “at will” state in terms of employment. This comes from California Labor Code Section 2922, which provides that employment having no specified term is presumed to be terminal at the will of either party.

Although the statute itself sounds neutral on its face, in reality we all know that the playing field is not level. Employers hold much greater bargaining power than do individual employees. If you have any doubt, try telling your boss that you have decided to work four days a week instead of five and you will likely see how little power you have in that relationship. Theoretically, employees have the right to find other employment if he or she does not like working for a particular employer. Employees may have this right, but there is no guaranteed opportunity, especially in this economy. This is why many employees stay in jobs they don’t particularly like and even endure illegal practices by employers.

As an “at will” state, employers in California may terminate any at will employee for any reason or no reason at all. It likewise can demote or change any of the terms of the employment at its pleasure, including hours, wages, and duties. Employers can take these actions no matter how unfair. It can even terminate employees based on erroneous or unsubstantiated information.

The only limitations on an employer to do whatever it wants to employees are:
• laws against discrimination and retaliation;
• union agreements;
• employment contracts;
• civil service protections for government employees; and, sometimes,
• employer policies or practices.

Discrimination Illegal discrimination must be based on an employees protected characteristic such as race, religion, age, sexual orientation, disability, etc. See below.

Retaliation Retaliation is when an employer takes action against an employee after an employee exercises some legal right or complains about an illegal activity or what the employee reasonably perceives to be illegal.

Union Agreements If you are a member of a union, almost all of the terms of your employment will be covered by the union’s collective bargaining agreement with the employer.

Employment Contracts An employment contract may be as simple as an oral agreement to work for three months. In order to be an enforceable contract for a specified term, it must be for more than one month under Labor Code Section 2922.

Civil Service Rules If you work for a government agency such as the State of California, the federal government, or a local city or county you are covered by the applicable civil service rules and possibly a union agreement.

Employer Policies Sometimes, an employer’s policies or practices may alter the “at will” nature of an employment relationship, such as a practice and policy to only terminate for cause.

I often get calls from employees who feel they have been mistreated by their employer or their employer is just unfair. Unfortunately, there is little legal protection except for those rights outlined above. It may be best to discreetly start seeking new employment as soon as you suspect you won’t be able to tolerate your employer in the long term.

In order for discrimination to be illegal, it must be the result of an employee’s membership in one or more of the following protected classes:
• Race
• Color
• National origin
• Religion
• Sex (including pregnancy, childbirth, and related medical conditions)
• Disability: Physical or mental
• Age (40 and older)
• Genetic information
• Marital status
• Sexual orientation and identity
• AIDS/HIV
• Medical condition
• Political activities or affiliations

The discrimination may be disparate treatment where the employer treats the members of a protected class differently than other employees; disparate impact where an employer’s policies affect a protected class of employees differently than other employees; harassment or hostile work environment; or quid pro quo in the case of sexual harassment where a supervisor conditions employment or benefits on acceptance of sexual advances.

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