Every manager and business owner knows that occasionally it is necessary to remove people from specific roles. This can mean reassigning them within the company, but often it means termination. However, if you do not follow proper protocol, terminating a problematic employee can generate significant risks.
At-will employment does not cover all firings.
First and foremost, California is an “at-will” employment state, and that means either the employee or employer can end the employment relationship at any time, with or without reason. However, there are some classes of employee that do not qualify for this designation, and they include:
- Union employees
- Contracted employees
- Public-sector employees
- Those who have “overcome the presumption of employment at will”
Let’s talk for a moment about that last class of employment and “overcoming the presumption of employment at will overcome.” A person enters that class when the employer takes action or makes a statement that could create the conclusion that an employee is no longer “at will.”
Actions that overcome the presumption can be a policy only to remove employees for disciplinary reasons or further review. The fact that it is a “presumption” can raise specific questions about whether a firing was proper or not.
Other difficulties with terminations
Additionally, if the firing is of an employee from a protected class or one who may have been a whistleblower, you may have some concerns. If there is any chance that this firing could be seen as discriminatory or retaliatory, you may find yourself facing a lawsuit.
Defending against these allegations is an extremely sensitive proposition and can lead you to difficulty if not appropriately handled.