Under the California Labor Code there are two basic types of employment: employment for a specified term (in excess of one month); and indefinite or “at will” employment. At will employment is terminable by either party, upon notice to the other. California case law had held that the employer’s right to terminate an employee “at will” includes the right to unilaterally change the terms of the employment agreement, i.e., the right to demote the employee, or reduce the employee’s compensation.

Stated another way, the “at will” doctrine means that absent an employment contract or agreement to continue employment for a specific period of time, an employee can be terminated with or without cause. Does this mean that an employee can be terminated, demoted, or denied promotion for any reason whatsoever? It most certainly does not.

Prohibited Employment Practices

A host of employment practices are prohibited under the law. Included among such practices is the making of an employment decision concerning the hiring, firing, demotion and/or promotion of an employee on an improper basis, or for a reason prohibited by law. An employee cannot be terminated in response to, or as retaliation for, the employee’s standing up for or seeking to enforce his or her statutory rights-to compensation, for example. And an employee cannot be terminated, demoted or denied promotion on any prohibited discriminatory basis-because of characteristics of the employee that place the employee in a “protected” class or group.

Classes Protected From Discrimination in Employment

Certain groups or classes of individuals are described under the law as being “protected.” An employer is prohibited from making any employment decision or taking any employment action based upon an employee’s or prospective employee’s membership in the protected group or class. The groups and classes which are so protected are ever-expanding, and today specifically include individuals who are not actual members of the group or class, but who are believed or suspected by the employer to be so. In addition to the traditional prohibited discriminatory bases of race, sex, nationality and religion, individuals are today protected from discriminatory employment practices based upon their age, sexual orientation and physical, medical and psychological conditions.

Tortious Discharge in Violation of Public Policy

If a member of a protected class is terminated for discriminatory reasons, or if an employee is terminated for seeking to enforce his or her legal rights, the employee may have a cause of action against the employer for tortious discharge in violation of California’s public policy. California law construes such a termination to be not just a breach of contract, but a “tort,” for which the damages and remedies are greater in number and amount. Whistleblower claims, claims involving wage and hour disputes, and discrimination claims are among those that are frequently brought in conjunction with a claim for tortious discharge in violation of California’s public policy. Such a claim has nothing to do with whether or not the employment is “at will,” and the employee’s status as an “at will” employee is no defense to bringing it.

Employment Laws Not Uniformly Applicable

Not all employers are subject to all of the same employment laws. For example, small employers are exempt from having to provide certain leave and accommodations which are required to be provided by large employers; and religious organization employers are exempt from certain discrimination laws that apply to other employers.

Any employer who has any doubts about his or her legally mandated duties and responsibilities, and any employee who has any questions about his or her legally protected rights, should contact the California Employment Law offices of Virginia H. Gaburo & Associates to learn what laws, duties and rights apply to them.

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