Terminating the Employment Relationship

1. A T -W ILL E MPLOYEES At-will employment is essentially the opposite of “for cause” employment, which is discussed in detail below. If an employee is at-will, then an employer may dismiss the employee without notice, without a reason and without affording any right of appeal. In contrast, a “for cause” employee can only be dismissed with advance notice, with reasons sufficient to constitute “cause” (aka, “just cause” or “good cause”), with certain pre-disciplinary procedural rights, and with a right to a post-disciplinary appeal hearing. a. The At-Will Presumption At-will employment is frequently associated with private sector employment relationships. However, California law is structured so that most employment relationships, private and public, are presumed at-will. The at-will presumption arises from Labor Code section 2922, which states that employment having no specified term may be terminated “at the will of either party.” The statutory “presumption of at-will employment” can, however, be overcome by an employment contract, statute (e.g., civil service or merit system statutes), or agency rules. Although most local government employers in California utilize some form of personnel system that creates certain employee rights, there is no legal requirement to have such a system. Legally, it is possible for all agency employees to be at-will. A local agency’s rules can and often do rebut the at-will presumption by granting employees a different status. Typically, an agency charter, ordinance, municipal code, resolution, personnel rule, civil service rule, or other local enactment will establish a system for hiring, evaluation, promotion and discipline of employees. 1 These local sources of legal authority typically identify which employees are for cause and which are at-will. For example, a common provision in civil service systems delineates between classified and unclassified members of the service. This distinction typically identifies the classified employees as for cause. Unclassified employees are identified as “serving at the pleasure of the agency.” 2 Serving at the pleasure of the agency is tantamount to at-will status. 3 Typically, at-will employees are high-level managers, department heads, executives, probationary employees, seasonal employees, and part-time/temporary employees. In most public agencies, the largest group of employees who qualify as at-will are those in probationary status. Exactly which groups of employees are at-will in any given agency often depends on the local definitions and rules of that agency.

Rules or provisions in a memorandum of understanding (MOU) sometimes create a conflict regarding an employee’s at-will status. For example, many management rights clauses include a provision identifying the agency’s authority to discipline all employees for cause. Although this is a generally accepted management right, such a broad pronouncement presents potential problems because it does not exclude at-will employees (for example,

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Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 10