Does “At Will” Really Mean “At Will”??
The California Labor Code does state that California is an “At Will” state. That’s not the problem! It’s how the term is improperly used that creates the headache. The California Supreme Court has actually strengthened the employers ability to terminate employees without cause. Okay, that’s a good thing. However, let me point out for unemployment purposes if an employer uses “At Will” as the reason for termination, the former employee will more than likely be found qualified for benefits. The Employment Development Department requires the employer to give a “reason” why the employee was terminated. If it was due to some form of misconduct, they want to know “what” was the behavior and the specific policy that was violated. The language in the at will statement does state “with or without cause.” Well the EDD wants the portion “with” or they will grant the benefits.
Some employers put the at will statement in offer letters, employee handbooks and other documentation setting forth the status of employment to ensure there is no room for doubt concerning the at will status of their employees. With respect to the offer letter, the langauge has to be clear. It cannot just state that the employment relationship is “at will.’ It must read:
“…your employment with________ is at will. This simply means that________has the right to terminate your employment at any time with or without cause just as you have the right to terminate your employment with_________with or without cause.”
This same basic language can appear in your handbook or other documentation. But you also have to understand that the at will provision does not protect you from a wrongful termination lawsuit based on a violation of public policy (i.e. discrimination or retaliation). As many of you have heard me state over and over again “I wish employers would forget the at will statement!” You should always have a “reason” why you’re ending the relationship. Have your documentation in place and don’t worry about being an at will employer (but still have the policy in place LOL!).
