Is At-Will Employment A Myth?

California law allows for at-will employment, except in cases where a different agreement is in place. This means that an employer might assume they have the right to terminate an employee for any reason, or even no reason at all.

However, the reality is much more complex than that. Over time, various limitations and exceptions to at-will employment have been established. Therefore, an employer should not think that the at-will doctrine will protect them against a wrongful termination lawsuit if they choose to fire an employee.

Implied Agreement

An implied agreement to not dismiss an employee without a justifiable reason can override at-will employment. Such an agreement can be created through written or verbal representations by the employer of continuing employment, statements that create job security expectations, or implementation of a progressive disciplinary policy.


An employer cannot terminate an employee based on their gender, race, religion, age, national origin, disability, or sexual orientation. Given the number of protected characteristics, many employees are likely to have at least one relevant to them. Hence, an employee can typically claim that their termination is due to illegal discrimination.

Public Policy

An employer cannot dismiss an employee for violating a fundamental public policy. Such cases usually involve terminations resulting from:

  • Refusing to break the law at the direction of the employer;
  • Carrying out a legal obligation;
  • Exercising a constitutional or statutory right or privilege like seeking a reasonable accommodation for a disability, filing for workers’ compensation, etc.;
  • Reporting or complaining about a legal violation like harassment, discrimination, wage, overtime, or safety violations in the workplace.

Burden of Proof

The at-will doctrine is further weakened by how the burden of proof is assigned in wrongful termination lawsuits. The employee has to show that they belong to a protected class, and there is a relationship between their protected status and the employment termination. If the employee can prove this, then the employer must provide a legitimate, non-discriminatory reason for the termination.

Considering these limitations, “at-will employment” can often be more fiction than truth. Consequently, employers must follow well-designed employment practices to minimize the possibility of successful lawsuits posed by terminated employees.

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