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Thoughts on Termination

Under California law (Cal. Lab. Code §2922), there is a presumption that all employment is terminable “at will.” Meaning, the employment relationship has no specific term and may be terminated at the will of either party with or without notice and with or without cause. This public policy, that individuals should be free to engage in all types of work without obligation, is the cornerstone of the State’s at-will employment doctrine. While seemingly both freeing and limiting, the nature of “at will” employment seeks to protect both the employer and employee by allowing for a more fluid movement of human capital which in turn provides for a more vibrant and energized workforce.

This “at will” presumption presupposes the absence of a contractual relationship governing employment making it explicit in its application to “employment, having no specified term.” In both defining and subsequently terminating an “at will” employment situation other factors, beyond whether or not a contract exists, must also be taken into consideration. An “at will” employment relationship is limited by several factors: public policy, constitutional rights, collective bargaining agreements and contractual agreement. Taking these factors into consideration it can be said (in essence) that an employment relationship may be terminated for any reason, with or without notice, so long as it is not terminated for a wrongful reason.

However, despite the ‘at-will’ status of most employment relationships, there remains a strong impulse on the part of employers to provide justification for all terminations. On some level, most employers feel a generalized need to justify a termination decision – whether it actually exists or not. More often, it is simply the timing of a termination that makes justification necessary. Keep in mind, ‘any reason…so long as it’s not a wrongful reason.’ This means that when considering termination it is very important to maintain objectivity and take into consideration the larger picture: the players, the overall dynamics, the potential risk factors, the costs and benefits. The difference between a well thought out exit strategy and a slap-dash approach can be significant when it comes to liability. In other words, in terms of overall risk assessment, the “how” becomes as important as the “why.”

Overall, respect for and preservation of an employee’s dignity can go a long way in setting the right tone for an arguably difficult situation. In the long-run it pays to maintain a professional demeanor, no matter the circumstances. If at all possible, every termination should be undertaken in accordance with the company’s existing policies and procedures.  Following established policies for the act of termination, as well as support for the action taken, can significantly reduce potential risk factors.*

* No Legal Advice Intended:  This website includes information about legal issues and legal developments.  Such materials are for informational purposes only and may not reflect the most current legal developments.  These informational materials are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances.  You should contact an attorney for advice on your specific legal problems.

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