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Can I Fire That Employee?

07
MAR

by: jcinar

So many employers nowadays are so afraid of getting sued that they would rather keep poor employees than terminate the relationship.  I get so many questions from employers about this very topic – can I fire my employee for coming in late? Can he sue me for wrongful termination? What if he does anyhow?

 

The truth of the matter is that in California, unless there is a written employment contract governing the terms of the employment, the employment relationship is “at-will.” That means that either the employer or the employee can terminate the employment relationship at any given time, without reason.  In fact, most employers and employees think that California law requires employees give a two-week notice period prior to leaving their job.  Although this is courteous on the part of the employee, it is not required.

 

However, there are exceptions to the at-will employment relationship.  If an employee can prove that any one of the exceptions apply, they may be able to sue the employer for wrongful termination, and possibly win.  Here are just a few of the most prominent exceptions applied in California:

 

1.  The public policy exception – an employee has a claim for wrongful termination against his or her employer if the termination is against a clear and well-established California public policy. For instance, in California, an employer cannot fire an employee for filing a workers’ compensation claim after being injured on the job.  Another example of a violation of public policy is that an employer cannot terminate an employee for refusing to break the law at the request of the employer. Other public policy violations include evidence of discrimination, harassment, and violations of the Family Medical Leave Act.

 

2. The implied-contract exception – sometimes, courts will find an implied employment contract even when no written contract exists.  For instance, some courts have interpreted employee handbooks that make certain promises and representations to be implied contracts. This is why it is extremely important to have a provision in the employee handbook that explicitly states that the handbook should not be construed as a contract and that the employment relationship is an at-will relationship.

 

3. The implied covenant of good faith and fair dealing - California courts have ruled that every employment contract carries with it an implied covenant that neither the employer nor the employee will stop the other from receiving the benefits of the employment relationship.  In deciding whether such a covenant can be assumed, the court considers several factors, including whether the company properly followed its stated personnel policies, the length of the person’s employment, any job security assurances that may have been made, a presence or lack of prior criticism of performance, and basic notions of fairness.

Comments (6)

  1. Miles Weston

    March 28, 2013

    This was rather interesting and I thoroughly enjoyed working my way through it.It has motivated me to do a better job of my own blog, as I tend to find it quite difficult to come up with any good ideas to post to be fair but it has certainly broadened my horizons. I was curious what plugins you may use to help your SEO and if you can share any tips on that subject I would be very grateful? I would appreciate any advice on how to get a wordpress blog to rank as well as yours. Keep up the good work and if you have any suggestions then please let me know.Kind regards.

  2. Yung Kash SK

    March 31, 2013

    Great content here, I learned at the same time of being entertained, great read!

    • jcinar

      April 5, 2013

      Thank you!

  3. Preston

    April 12, 2013

    Great content here, I learned at the same time of being entertained, great read!

  4. @yungkashsk

    April 17, 2013

    Thank you for the good post!

  5. Lauren

    May 5, 2013

    Interesting blog and post here! Great information and good work, well done!

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