• Marc Kroop

Employee Rights - When A Fair Reason For Termination Is Required

Updated: Jan 24, 2018

An issue that comes up consistently in our initial consultations we have with our potential clients concerns whether or not the employer is required to provide a fair or good reason to terminate an employee's employment.


Where an employee has a contract for employment, is otherwise subject to the terms of a collective bargaining agreement or has certain due process rights as a government employee, a fair or good reason for termination is required.


For all other employees, the answer may be less clear. Most employees and employers are familiar with the concept of an "at-will" employment relationship. However, this concept has little practical meaning to an employee, if the employee believes that the termination of their employment was unjust or unfair.


It is for that reason that most employers in California will provide a form at-will agreement to their prospective employees to sign, at the outset, prior to the time the employee begins their employment. In so doing, the employer is notifying the prospective employee that the employee's employment is not specific for any length of time, and, moreover, the employee's employment can be terminated at any time, for any reason, with or without good cause. From the employer's standpoint, this may even include reasons that the employee may believe are unfair or unjust. For employers, having their employees sign an at-will agreement in writing is paramount to maintaining an at-will employment relationship with its employees. However, even without such a signed at-will agreement, the employee's initial status does not change and the employee is (at least initially) considered an at-will employee according to California law. California Labor Code Section 2922.


For employees, it is important to understand that over time, in the absence of a signed at-will agreement, the nature of an employee's employment can change from at-will to something entirely different. After a significant period of ongoing employment, an employee, based upon the totality of his or her circumstances, can assert that he or she is no longer an at-will employee. Instead, the employee can assert that a contract for ongoing or continued employment exists that is implied by law. In these cases, the employer no longer maintains the legal right to terminate an employee for any reason, and certainly not an unjust or unfair reason. In these cases, the employer is required to provide notice of any alleged performance deficiencies and an opportunity for the employee to correct any alleged performance issues, prior to termination. In other words, when an implied contract exists, an employee is entitled to a fair and just reason for termination.


In asserting the existence of an implied contract for continued employment, an employee can point to factors that make it unlikely that the employer intended to maintain an at-will relationship with the employee. Such factors include the following: (1) the employee maintained uninterrupted employment for a lengthy period of time, (2) the employee received overwhelmingly positive performance reviews, (3) the employee received regular increases in pay or bonuses, (3) the employee regularly received positive feedback and promotions from the employer, and (4) the employee received written or verbal representations from the employer that his or her employment was not at risk of at-will termination. When these factors are shown, it is clear that the expectations of the employee and the employer included maintaining a continuing or ongoing work relationship.


For employers, having their employees sign at-will agreements at the outset of an employee's employment, prior to the employee's start date, can prevent an employee from claiming that he/she has a separate implied contract for employment.


For employees who have been terminated from long-term positions, the first step in determining their rights is to request a copy of their employee personnel file. According to California Labor Code Section 1198.5, upon a written request for personnel records by an employee, an employer has 30 days to provide all personnel file records to the employee.


If a written/signed at-will agreement is included in the employee's personnel file, an implied contract claim will not exist. However, in cases where a long-term employee has been terminated and he or she has not signed an at-will agreement, he or she may believe that they have not been fired for good cause. In those cases, it would be beneficial for the employee to meet with us to determine their employment rights . We offer an initial free case evaluation. There is no preset time limit for our initial free case evaluation. To make an appointment to meet with us and obtain an initial free consultation, you may call our firm's managing attorney, Marc G. Kroop direct at (925) 989-8264 Alternatively, you may email us at info@krooplaborlaw.com and we will immediately respond to your request for a consultation in writing.




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