Employee termination in California is not easy, one wrong step can lead to significant legal repercussions. Employers often misunderstand the concept of at-will employment; while at-will employment provides some flexibility, it is also bounded by many legal constraints.

Misconception No. 1: ‘At-Will Means I Can Terminate for Any Reason’


In California, at-will employment means that, without an employment contract, both the employer and the employee can terminate the employment relationship at any time, with or without cause. It does not, however, provide carte blanche to dismiss employees for illegal reasons under federal and state laws.

California courts and the Legislature have carved out exceptions to California’s at-will doctrine, thus increasing wrongful termination claims. These exceptions include but are not limited to discrimination and retaliation, laws prohibiting discrimination based on a protected class— such as race, color, religion, sex, national origin, age, disability and genetic information — along with protections for whistleblowers and employees exercising their rights under labor laws place clear boundaries around at-will termination.

To illustrate, consider the risks associated with citing “not a good fit” as the sole reason for termination. Attorneys representing employees often love hearing that the reason an employee was let go was because they were “not a good fit” — they see it as an opportunity to argue that the underlying reason for an employer’s decision was influenced by factors related to protected classifications. Employer’s need concrete, business-related reasons supporting termination — and documentation of the reasons.

Misconception No. 2: ‘I Can Terminate an Employee Within Their First 90 Days Without Risk’


Another dangerous misconception among California employers is the assumption that terminating an employee within the first 90 days of employment carries no legal risk. This belief misinterprets the concept of a “probationary period” and overlooks employee protections under California law. In truth, even though there is nothing guaranteed or contractual about continued employment, a risk-free probationary period is a fallacy; from day one, the law safeguards employees against wrongful termination.

It’s crucial for employers to understand that the initial 90 days of employment do not offer a shield against legal claims.

Misconception No. 3: ‘If I Lay an Employee Off, I Will Avoid Legal Risk’


The criteria used in determining layoffs are scrutinized under both federal and state law designed to shield employees from unlawful discrimination and retaliation. Employers must be prepared to justify the process used to select employees for layoff, and to prove that the layoff was carried out in an objective manner. Documentation is essential in supporting termination decisions.

Importance of Documenting Business-Related Reasons for Termination


The foundation of defending against wrongful termination claims lies in the employer’s ability to provide specific, documented business reasons for the termination.

Effective documentation practices include:

  • Addressing issues in writing
  • Maintaining clear policies
  • Consistently applying policies
  • Providing timely feedback
  • Gathering objective evidence


Employer Takeaways


  1. Maintaining detailed and thorough records of performance, disciplinary actions and any interactions related to termination decisions.
  2. Training and educating managers and supervisors on the legal aspects of employment termination and the importance of documentation.
  3. Providing clear, direct feedback to employees about performance or conduct issues, allowing them to improve before making termination decisions.
  4. Applying policies and documentation practices consistently among all employees to further defend against potential allegations of discriminatory treatment.
  5. Before making risky termination decisions, consulting with legal counsel to review the case.

As always JorgensenHR can assist you with employee counseling, performance reviews, performance improvement plans and terminations. Please connect with us at info@jorgensenhr.com or 661-600-2070.

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