She Is An At-Will Employee – I Can Fire Her, Right?

By: Laura C. Hess

This is a situation we see fairly often. The employer has an employee that it wants to terminate. The employer says, "I don't have to have a reason. I can fire her any time, she's an at-will employee!" What could possibly go wrong?

Well, a lot of things. It is true that the rule in California is that employment relationships are presumed to be at-will. This means that, generally speaking, the employee can quit at any time, with or without a reason, and the employer can terminate the employee at any time, with or without a reason (as long as that reason is not prohibited by law.)

However, what do you think is going to be happen if, for instance, the employee has been working for the same company for 20 years and suddenly is let go? The employee is going to be upset and angry about the fact that she has dedicated a substantial portion of her working career to one company, only to be handed a pink slip one day. More likely than not, that person is going to go talk to a lawyer.

Same thing with an employee that has, for instance, complained about sexual harassment within the last 6 months. Chances are the employee will claim that she was fired for pretextual reasons, and that the real reason she was terminated was because she reported sexual harassment.

Here is the bottom line. Any time you are considering letting go one of the following types of employees, that is when you should talk to your in-house legal department or outside lawyer before you take any action:

  • "Employees from hell"
    • someone who has a bad attitude and/or has been particularly difficult for co-workers to work with;
    • someone who seems to be trying to "poison the well" against the company in online comments or with co-workers, customers, or vendors.
  • "Red flag" employees
    • someone who uses legal terminology that indicates he or she may have already consulted with a lawyer (i.e., "This is a hostile work environment;")
    • someone who appears to be taking particular care to document communications with Human Resources or upper management;
    • someone who refuses to sign requested documentation, i.e., write-ups or negative performance evaluations.
  • Someone who is in a "protected class" - it is illegal under both California state and federal law for employers to terminate employees on the basis of their protected class status. Protected classes include, for example:
    • gender;
    • race;
    • age (40 or over);
    • disability;
    • pregnancy; and
    • religion.

This list is by no means exhaustive. In our practice, these are just some of the common protected classes that we see plaintiffs claim they fall under when they sue for wrongful termination or discrimination. The list of protected classes under California law is far lengthier than under federal law, and includes things such as marital status, sexual orientation, and military or veteran status.

If your in-house corporate counsel or your outside lawyer does not practice in California, you should definitely consult with a California lawyer who specializes in employment law before terminating any of the above employees. California leads the nation in terms of providing expansive legal rights to employees. Employment laws in California are many and complex. There are more employment lawsuits filed in California than in any other state in the country. In short, unless you know what you are doing in California, it is a virtual legal minefield for employers.

Laura C. Hess is a Partner with Kring & Chung, LLP's Irvine, CA office. She can be reached at (949) 261-7700 or lhess@kringandchung.com.