Do I Have a Case if I’m an At-Will Employee? The Answer - - It Depends.

As an employment attorney, the number one question I usually get from potential clients is, “Do I have a case?” Employees who are at-will (which is the overwhelming majority of us in California) also usually ask something like, “Does being an at-will employee ruin my case?” For many reasons, the short answer to both of these questions is often “it depends.”

The phrase “at-will” can be misleading. It causes many employees to think that their boss can fire them without consequence. This, however, is not true. Golden State employees should know that even at-will employees have rights.

Generally speaking, at-will employment simply means that an employer is free to fire an employee at any time and for any lawful reason. At-will employers do not need to notify their employees before firing them. Also, courts will usually not question an employer’s motives. It is no wonder that so many employees feel discouraged and believe there is nothing they can do when they are fired.

This is where your lawyer comes in. It is true that at-will employment gives employers a great deal of discretion in deciding who they want to fire. However, keep in mind is that the termination has to be for a “lawful” reason. That, of course, begs the question - - when is it lawful to fire someone?

In my opinion, it is easier to answer this question by asking it a different way - - when is it not lawful (illegal) to fire someone? Over the years, California has passed a number of employment laws that cover the legality (or illegality) of terminating employees. It is important to know that these laws are complex, sometimes vague, and always subject to change. Speaking with an attorney is the only way for employees to know what their rights are at any given time.

It would take an entire book to discuss each and every employment law in California. That said, here are a few that frequently come up in my practice:

• Fair Employment and Housing Act (“FEHA”) (California Government Code Sec. 12900 et seq.)

  • Among other things, prohibits discrimination, harassment, and retaliation in the workplace based on a person’s race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.

• California Constitution

  • Among other things, protects your right to have a job regardless of your sex, race, creed, color, or national or ethnic origin.

• California Equal Pay Act (California Labor Code Sec. 1197.5)

  • Among other things, prohibits differences in pay based on race, gender or ethnicity for substantially similar work.

• California Family Rights Act (“CFRA”) (California Government Code Sec. 12945.2)

  • Among other things, guarantees protected leaves of absence for employees under certain circumstances. You should speak with an attorney to know whether or not you qualify for CFRA leave.

• California “Whistleblower” Statute (California Labor Code Sec. 1102.5)

  • Many California laws protect employees who “whistleblow,” but this law prohibits retaliation where the employee, among other things, reports a violation of local, state, or federal law to someone at their employer with authority to investigate, discover, or correct the violation.

Employment laws serve as a check on the broad discretion given to at-will employers in California. An employer who violates these laws could be found liable for wrongfully terminating an employee. Different kinds of compensation are available to employees who are victims of unlawful employment practices depending on the circumstances. This can include things like civil penalties, compensatory damages, attorney fees, and costs. The only way to know what compensation, if any, you may be entitled to for your particularly situation is to speak with an attorney.  

As I said before, the answer you are likely to get from a lawyer when you ask, “Do I have a case?” is “maybe,” “probably,” or “it depends.” This will be followed by an explanation of the strengths and weaknesses of your claims, as well as the applicable law. You are likely to get the same response if you ask about at-will employment hurting your case. Don’t let this discourage you. The lack of a clear “yes” or “no” answer is common in legal disputes. (As a side note – this is probably one reason why there are so many lawyer jokes out there!)

In the end, the most important thing to remember is that the only way to know whether you have a case is to speak with an attorney. Picking up the phone and talking about a painful experience with a stranger can be intimidating. That said, you will gain a better understanding of your rights.

If you find yourself in a difficult situation at work, or have been terminated, and don’t know what to do please remember that you are not alone. Speaking with an attorney sooner rather than later can make a big difference. For this reason, I invite you to call my office if you have the misfortune of needing the advice of an employment attorney.

-Steven

The information you obtain from this site and/or article is provided for informational and attorney advertising purposes. It is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation as everyone’s situation is different. I invite you to contact me and I welcome your calls, letters, and electronic mail. Contacting me does not create an attorney-client relationship. Please do not send any confidential information to me until such time as an attorney-client relationship has been established.