An Administrator's Guide to California Private School Law

Chapter 4 - Employment Contracts And Separation Of Employees

All at-will employment agreements should include a clear and separate provision specifying that the employment relationship between the school and the employee is at-will. The provision should state that either the school or the employee are free to end the employee’s employment and terminate the agreement at any time, and with or without notice or cause.

LCW Practice Advisor

One way that at-will employment may be defeated is if an employment contract described as at- will contains any language promising that the employment relationship will last for any specified period of time. Again, since at-will employment is a rebuttable presumption, any contractual terms that are inconsistent with the definition of an at-will employment relationship put a school at risk. For the same reason, any policies contained in a school’s employee handbook that contradict at-will employment should be removed, such a progressive discipline policies, which suggest that an employer needs cause to be able to dismiss its employees. As another example, a school should not provide a newly hired at-will employee with a probationary period. A probationary period usually lasts between 6-18 months and is designed to allow employers to evaluate whether the employee is a good fit for the job, the school, and its employees. If the employee is not a good fit, the employer typically rejects the employee prior to the end of the probationary period without cause. However, such provisions regarding probationary periods serve no purpose since an at-will employee may already be terminated without cause at any point in time. Instead, such a provision may create risks for the school since an employee may claim he or she is entitled to remain employed for the entire duration of the probationary period or claim he or she is no longer at-will once he or she passes the probationary period. 395 While not advised, if a school chooses to use a probationary period, it should be clear that the employment relationship may end at any time, even during the probationary period, for any reason and with or without cause. LCW Practice Advisor If an employment contract does not contain a

specified term of employment but does provide for a length of notice required before termination, this provision may be treated as an employment contract for at least the required notice period. If schools wish to include such a provision regarding a notice period, it is recommended that the provision state that it is not a requirement and that it is only being requested as a courtesy.

B. R IGHTS OF A T -W ILL E MPLOYEES Generally, an employer’s motives for terminating an at-will employee are immaterial—even if the employer acted in bad faith, dishonestly, or unfairly 396 —so long as the employer’s motives are not unlawful, as discussed in greater detail, below. In fact, an employer need not treat at-will employees similarly, and may even act arbitrarily or inconsistently with regard to different at-

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 105