An Administrator's Guide to California Private School Law

Chapter 4 - Employment Contracts And Separation Of Employees

will employees. 397 Further, an employer need not provide warnings, procedures, objective evaluations or preferential reassignments when terminating an at-will employee. 398 However, even if the law does not require it, implementing and using fair and consistent employment practices with regard to at-will employees can promote the retention of good employees, positive morale in the workforce, and protect the school from legal challenges, such as when employees sue claiming they have been subject to discrimination, harassment or retaliation. In addition, notwithstanding the broad discretion that employers have to separate at-will employees, an at-will employee has certain legal rights that will limit some of the employer’s discretion. LCW Practice Advisor Apart from the express contract terms, other factors which can be used to ascertain whether employment is at-will include (1) the personnel policies usually 1. T ERMINATION F OR A N I LLEGAL R EASON While it is true that employers may terminate at-will employees for no reason at all, that right is not absolute and employers may not terminate at-will employees for “illegal” reasons. For example, discrimination, retaliation, “whistleblower,” and other similar laws protect at-will employees. 400 Thus, despite the fact that “cause” and fairness are not required to terminate an at- will relationship, it is highly advisable that at-will employment decisions be supported by sound management practices and good documentation. As discussed below, an at-will employee can challenge his or her termination by alleging that the true reason for the termination was because of a protected status or activity. The employer’s ability to provide good documentation of the legitimate reasons for a termination will help provide the school with a defense in the event of such a legal challenge. 2. W RONGFUL D ISCHARGE I N V IOLATION O F P UBLIC P OLICY Where a school terminates an at-will employee for reasons that violate fundamental public policy, the employee may bring suit. 401 The determination of whether a termination violates public policy is fact-based. Generally speaking, an employee may not be terminated for refusing to violate a law, statute or regulation, performing or exercising a legal, statutory or regulatory obligation or right, or for reporting legal, statutory or regulatory violations. For example, it is a violation of public policy for an employer to discharge or otherwise penalize an employee for having recently taken FMLA leave, since employees have a protected statutory right to take family medical leave. contained in the employee handbook, (2) the employee's longevity of service, (3) actions or communications by the school reflecting assurances of continued employment, and (4) the practices of the industry in which the employee is engaged. 399

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