Defeating the At-Will Employment Presumption in California

Under California law, an employee is presumed to be “at-will” employee unless agreed otherwise. Cal. Labor Code section 2922. “At will” means that an employee can be terminated for any reason, no reason, or arbitrary reason, as long as it’s not an unlawful reason (such as discriminatory or retaliatory discharge, to name a few).

There is a number of laws and ways in which the presumption of at-will employment can be defeated, as might be necessary in order to prove a wrongful termination claim. Some of those laws are stronger and more definite while others are more vague and are not applied by all courts equally in California. Below is a number of the more compelling ways to defeat at-will employment presumption.

An express agreement that employment is other than at-will of course defeats the at-will employment presumption. Thus, most union employees are not at-will employees as their contract with the employer – the collective bargaining agreements – almost always provides that an employee can be only terminated for good/just cause. Additionally, personnel manuals that list specified grounds for discharge are evidence of an implied-in-fact contact to terminate only for good cause.

Likewise, an employment agreement for a specific term is inconsistent with employment at-will, and thus defeats that presumption. Chyten v. Lawrence & Howell, Inc. (1993). Similarly, although not always, the employer’s written policies or procedures, contained in its personnel manuals, may rebut the presumption of at-will employment. Pomona College v. Superior Court (1996).

The presumption of at-will employment is not a defense to termination in violation of public policy (terminating an employee for exercising one of the enumerated important, fundamental rights which were established to benefit the public in general). When an employee is terminated in violation of public policy, the at-will employment presumption has little, if any, relevance. Foley v. Interactive Data Corp. (1988).

Evidence of only salary increases, longevity and promotion is sufficient to create a triable issue of whether implied agreement not to terminate by for good cause existed. In one case, the court considered an employee six-year work history at a company, including a promotion after two years, grade and salary increases during that time and compliments about the high quality of her work to establish that the above evidence was sufficient to potentially defeat the at-will presumption.