Fast Legal Answers: What is at-will employment?

In today’s Fast Legal Answers series I am addressing a core employment law topic: at-will employment. The rules related to at-will employment control the bulk of private sector employment arrangements, yet many employees have no idea what at-will employment is.


What is at-will employment? At-will defined.

At-will employment is what it sounds like, you serve at your own will, and the will of your employer. So, you can leave your job at any time, and your employer can terminate your employment at any time.
At-will employment is explicitly recognized in California Labor Code section 2922, which provides:

An employment, having no specified term, may be terminated at the will of either party on notice to the other. Employment for a specified term means an employment for a period greater than one month.

The above labor code section also means that, absent a specific term to the contrary, there is a presumption that all employment in California is at-will employment.


This concept is simple enough, but when you think about it, the implications are pretty harsh. Based on the simple definition alone, this means if you are an at-will employee whether on your second day of work, or the day before your 30th work anniversary, your boss could come in and fire you for any or no reason at all. The California Supreme Court has echoed this sentiment “[a]n at-will employment may be ended by either party `at any time without cause,’ for any or no reason, and subject to no procedure except the statutory requirement of notice.” Guz v. Bechtel National, Inc., 24 Cal.4th 317, 335 (2000).


If I am an at-will employee and I’m fired does that mean I cannot challenge my termination?

No. In some instances your status as an at-will employee may drastically limit your ability to challenge your termination but depending on the facts of your case you may have a great argument that your employer violated a law when they fired you, or that based on some agreement, the employer could not terminate you the way they did.  Obviously, there are laws that limit the ability of the employer to fire someone for certain reasons, like if the firing decision is founded on a discriminatory animus.


So if I am fired, how do I challenge my termination?

Generally, when an employee is terminated two essential arguments are raised: 1) that you were not an at-will employee subject to summary termination at the employer’s will and, 2) your termination was in violation of one or more laws.


1. Arguing you were not an at-will employee

Some employees successfully argue that their employment was not actually at-will, but was controlled by some agreement or understanding they had with their employer regarding your relationship.


Employers will have employees sign employment agreements or contracts when they are hired. Typically, this agreements will reiterate that the employment is at will and that the employee can be terminated at the employer’s discretion. However, if the agreement contains terms like “the employee will only be terminated for good cause” or other similar terms, that agreement can be used to demonstrate that the employment was not at will.

This is why it is important to retain copies of all agreements you sign when you being your employment. If you can provide these documents to your attorney when you are consulting with them about your termination it will help them determine very quickly whether any arguments can be made regarding your contractual relationship with your employer.

Implied contract claim

Employers often provide their employees with employee handbooks or other written materials.  If these materials suggest that the employment relationship is not at will, or that employees will only be fired “for cause” or for certain misconduct than this would be strong evidence of an implied employment contract. California courts have recognized that when an employer promulgates formal personnel policies and procedures in handbooks, manuals, and memoranda disseminated to employees, a strong inference may arise that the employer intended workers to rely on these policies as terms and conditions of their employment, and that employees did reasonably so rely. Scott v. Pacific Gas & Electric Co., 11 Cal.4th 454, 465 (1995).

Covenant of good faith and fair dealing

In some instances California has recognized that a termination after a long period the implied-in-law covenant of good faith and fair dealing contained in all contracts. This means that if you terminated for no after years of being a model employee, your employer’s actions may violate general notions of acting reasonably and dealing fairly. This theory is difficult to prove, but is recognized in certain instances in California. See, e.g., Pugh v. See’s Candies, Inc., 116 Cal. App. 3d 311 (1981), Cleary v. American Airlines, Inc., 111 Cal. App. 3d 443 (1980).


2. Wrongful terminations – firings contrary to law

Even if you are an at-will employee, your termination cannot be the result of an unlawful action. If your employer fires you because you tell them you are pregnant, regardless of whether you are an at-will employee or not, that would be a clear violation of law.

Examples include

  • Laws against discrimination based on:
    • Sex
    • Age
    • Color
    • Race
    • National Origin
    • Pregnancy
    • Disability
  • Using federally protected leave Family Medical Leave Act (FMLA)
  • In some instances, your involvement in the reserves or other military deployments
  • Engaging in protected Whistleblower Activity

I’m not sure if I am an at-will employee or not

So I read everything above, but I still have no idea if I am an at will employee or not…
Well, I don’t blame you, it can be hard to determine whether or not you are an at-will employee. Generally, most employees are considered at-will employees, but the facts of each case are different and need to be reviewed carefully. These issues can be complicated, and seemingly insignificant facts can greatly affect the legal conclusion of whether employment is at-will or not. If you are in doubt you should consult an attorney, explain your case, provide as much documentation as you can, and they will help you to determine your status as an at-will employee and what options you have to challenge your termination.


I’m not sure my termination was illegal or not

If you think you were terminated for one of the above listed statutorily protected reasons, you should consult with an attorney to discuss your claim. Essentially these claims require that you demonstrate that your termination was the result of a violation of one of these laws. It can be difficult to prove the motivations of your employer and even more difficult to get evidence from the employer to prove the same. Accordingly, you should consult with an attorney to determine the merits of your case and assist you through the filing of your complaint, the discovery process, and either trial or settlement.



Hopefully, this article explained at-will employment and gave you some ideas of the implications at-will employment has for employees facing termination. Now, you should also understand some of the more common theories that are advanced to challenge alleged at-will terminations and are better educated should you be dealing with such issues yourself.

At this time we are not taking on any new clients. All information provided above is for reference purposes and should not be construed as legal advice. You should consult with a licensed attorney before taking any action in your case.