Terminating the Employment Relationship

Step 3 At the time of hire, require at-will employees to sign an acknowledgment indicating their at-will status. Prior to executing an at-will employment contract, the agency should ask its legal counsel to review the draft contract to address any of the agency’s unique needs and circumstances. A contract may require involvement of the appropriate union or association. A court could find that an employment contract enumerating grounds for dismissal creates for cause employment. 33 Step 4 Official action taken by the appointing authority to approve a person’s employment should reflect at-will status. For example, the documents describing a particular employee's date of hire, employment position, salary, etc. that is submitted to a City Council or other appointing authority should expressly state that the employment is at-will. The agency may also want to give the official action ratifying the at-will employment to the new employee. This puts the employee on notice of the at-will employment relationship, thereby enhancing the agency’s chance of prevailing if the employee later claims to have an implied employment contract. Step 5 All job announcements and job descriptions should carefully avoid any statement that could be construed as implying “for cause” employment, including statements such as “our permanent director” or “we anticipate a long, harmonious relationship.” Department manuals, employee handbooks and employee evaluation forms should not use language that could be construed to require the agency to terminate at-will employees for cause. Accordingly, the agency should review its department manuals, employee handbooks and employee evaluation forms to ensure that there are no representations that employment will continue absent cause for discharge. Courts have rejected employee claims that agency manuals imply for cause employment just because they do not mention whether or not employment will be terminated for cause or for specified offenses. 34 These decisions mean that an agency must have a statute expressly creating for cause employment to overcome the Labor Code section 2922 at-will presumption. 35 However, we suggest that at-will employment be made very clear to the employee and his/her supervisor. A common mistake by many agencies is a failure to recognize the problem of broad generalized language – perhaps in a management rights clause – stating that employees may be dismissed for cause. Such an unconditional statement can give rise to an argument that employees can only be dismissed for cause. To avoid facing this argument, agencies should make sure to include language to the effect that unclassified, probationary and other at-will employees may be disciplined without notice, cause or right of appeal notwithstanding any other provision in the memorandum of understanding (or rules).

TIP : An agency should consider explicitly stating in a contract with an outside agency and in communications with workers from an outside agency that they are at-will and do not have due process rights. An agency should also strongly consider keeping specific contract workers for relatively short durations.

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 27