Law
Offices of Phillip J. Griego & Associates Law
Offices of Phillip J. Griego & Associates Most
employment relationships in California are considered to be “at will.”
This means that the employer can discharge an employee, and an employee
can quit, at any time for any reason, or no reason at all, so long as it is
not an unlawful reason. This principle has been codified in Labor Code Section 2922,
which states, “An employment, having no specified term, may be terminated at
the will of either party on notice to the other.”
The
at-will doctrine does not, however allow an employer to terminate an employee
for an illegal reason. Examples
of illegal reasons include terminating an individual because of his or her race,
age, disability, national origin, sex, sexual orientation or because the employee
has participated in a statutorily protected activity. Additionally, some employees
are not at will and can only be terminated for cause.
Employees
who are not “at-will,” usually have contracts that specify how and when the
employment relationship can be terminated.
The contracts can be written, oral, or implied-in-fact.
If an employee successfully establishes that he or she has a contract
that provides for termination only upon “good cause,” then the employer must
have cause to terminate the employee.
Examples of cause include:
Quite
frequently, collective bargaining agreements contain “good cause” termination
provisions. Accordingly, most union
members may not be terminated except for cause. Employees working under a union contract, however, have limited
ability to bring a Breach of Contract action because the contract is between
the union and the employer. The
employee is more of a third party beneficiary of the contract.
Union members can usually appeal a termination through the Union’s grievance
procedure, oftentimes up to and including arbitration.
Union members should review their collective bargaining agreements thoroughly
to determine their rights.
Sometimes,
non-Union employees have written agreements that specifically state the grounds
upon which the employee can be terminated.
“For Cause” agreements usually contain additional clauses relating to
specific standards of performance or a specified term, which must be taken into
account. The best time to review
a written employment contract is before you sign it!
Oral
contracts are just as enforceable as written contracts.
The difference is that oral contracts are much more difficult to prove,
and you must bring an action for Breach of Oral Contract in court sooner than
an action for Breach of Written Contract.
To establish an Oral Contract, the party seeking to enforce the contract
must still prove the essential elements of a contract.
Some contracts are partly oral, partly written, and are derived from the circumstances surrounding the employment. In essence, an Implied-in-Fact Contract exists when the parties reasonably believe that a contract not to terminate except for good cause exists. To determine whether a party’s belief that a contract exists, the courts look at several factors. No one factor is more important than the others, and no one factor alone is sufficient. The factors include:
In today’s workforce, almost every Employee
Handbook contains an at-will provision and many cases are lost because the courts
determine the employee is at-will and can be terminated for no reason.
An employee discharged in breach of a contract, regardless of whether the contract is written, oral or implied-in-fact, is entitled to recover the total amount he or she would have received had the contract not been breached. This includes lost wages, stock options, medical and life insurance, employer contributions, and other benefits. The employee is not entitled to emotional distress damages or punitive damages. Unless the contract specifically provides for an award of attorney’s fees, each side must bear the costs of their own attorney’s fees and costs.
In
addition, employees have a “duty to mitigate” their damages.
The employee must make earnest attempts to find comparable employment.
If an employee fails to make adequate attempts to locate comparable employment,
the employee may not be able to obtain the full amount damages he or she would
have otherwise received.
There
are a number of factors to consider when determining whether an employer or
employee has breached the employment agreement. An attorney can help evaluate the numerous factors involved
and assist the parties decide how to resolve the situation.
This information has been prepared by the Law Offices of Phillip J. Griego & Associates for informational purposes only and is not legal advice. Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship. Readers should not act upon this information without seeking professional counsel. The information contained herein is provided only as general information which may or may not reflect the most current legal developments. This information is not provided in the course of an attorney-client relationship and is not intended to constitute legal advice or to substitute for obtaining legal advice from an attorney licensed to practice law. This information is not intended to be advertising and the Law Offices of Phillip J. Griego & Associates does not wish to represent anyone desiring representation based upon viewing this article in a state where dissemination of this information fails to comply with all laws and ethical rules of that state.