At-Will Employment Provisions

An employer should not underestimate the importance in confirming and preserving in writing “at-will” employment. Most states, including California, permit the employment relationship to end at the will of either the employer or the employee at any time unless the parties have agreed otherwise. Ambiguity can thus put management at a significant disadvantage.

In Starzynski v. Capital Public Radio, the employee signed an employment at-will agreement that could only be modified by the company’s board of directors.  However, both before and after signing the agreement, his supervisor repeatedly assured him discharge would only be for unsatisfactory performance, a contradiction to at-will.  Seven years later, after the employment relationship abruptly ended, the employee sued, alleging that the supervisor’s promise created an implied contract to terminate him only for good cause despite that written agreement.

The court disagreed with the former employee, ruling the signed at-will acknowledgment “cannot be overcome by proof of an implied contrary understanding.”

The decision thus confirms the protection of clear and consistent written statements of at-will status.

Drafting Tips:

Use plain language; ● reiterate at-will wording in certain key points throughout the handbook, such as in the disciplinary policy, grievance procedures, performance evaluations; ● confirm that at-will employment status may never be changed except by written agreement between the employee and the company CEO as ratified by the board of directors; ● and ensure job postings, offer letters, and other handbook provisions do not contain any language contradicting at-will status; e.g., do not require the employee to give two weeks’ notice of resignation.

Take-Aways:

• Implement and maintain written employment agreements and workplace policies that unequivocally establish at-will employment;
• Train managers not to promise job security or make any other statements that contradict at-will employment; and
• Purchase and apply written policies via a comprehensive, updated, and well-written handbook.

We trust this series will enlighten employers on the importance of having a well-written handbook to assist new hires, existing employees, and management alike. To purchase our template handbook and accompanying forms or for more information, please contact Office Manager Aimee Rosales at 626.583.6600 or email her at officemgr@tbowleslaw.com.

See also:

• Proper Fashion Policing – The Limits to Dress Code and Appearance Standards(May 20, 2022)
• Happier and Healthier – Workplace Policy Handbook & Forms for 2022 (April 29, 2022)
•  “At Will” Employment – A Three-Minute History (December 18, 2020)

Cindy Bamforth
June 10, 2022