California and New York are “at will” states.
Wrongful Termination
The general rule is that an “at will” employee serves at the will of their employer and can be terminated at any time – for any reason or no reason, with cause or without cause, with notice or without notice.
But this general rule has exceptions. In California, even if an employee is “at will,” that employee can still sue their employer for wrongful termination if the employee’s termination was the result of illegal discrimination or harassment, bullying or retaliation, breached a provision in a contract between the employee and employer, constituted a violation of the federal or state WARN Act, and/or violated some fundamental public policy of the state, such as the right of every employee to complain about unlawful pay practices, to raise concerns about sexual harassment in the workplace, and/or to complain about an unsafe or unhealthy work environment.
If a terminated “at will” employee can prove any of these, that terminated employee can sue their employer for wrongful termination in California and recover damages for lost wages and emotional distress, as well as punitive damages. As a result, smart employers in California know that, prior to firing any employee, it’s best to get experienced employment counsel involved to make sure that none of the above exceptions applies to their situation.
HOW WORKPLACE LEGAL CAN HELP
At Workplace Legal, attorneys in our Counseling & Preventive Advice practice guide employers through difficult employee discipline and termination situations virtually every day. We analyze the employee’s situation and perform a wrongful termination risk assessment. If our client feels that the employee can be rehabilitated, we draft a performance improvement plan (“PIP”) and then guide our client through its implementation. If our client feels that rehabilitation is not possible, or if the PIP was implemented but not completed successfully by the employee, we advise our client on the concrete steps to be taken to reduce its risk as it proceeds toward termination.
Along the way, if our client desires to implement the lowest-risk strategy, we counsel our client regarding a severance options. We analyze the employee’s leverage, recommend a severance strategy, draft the severance agreement, and counsel the client on how best to present it to the employee. The severance agreement secures a written release of liability and promise not to sue from the terminated employee in exchange for a cash payment from the employer. It is as close as an employer can get to a risk-free termination.
OTHER CAPABILITY AREAS
Wage and Hour
Discrimination & Harassment
Whistleblower & Other Retaliation Laws
Independent Contractors
Private Attorneys’ General Act (PAGA)
Exempt vs. Non-Exempt Employees
Leaves of Absence
Executive Severance
Employee Mobility/Restrictive Covenants
Employment Agreements
Trade Secrets & Unfair Competition
Arbitration & Alternate Dispute Resolution (ADR)
