After attending a seminar on employment law, I instituted an at-will policy of employment at my workplace. It was my understanding that this would protect me against claims by disgruntled employees. I was just served with an EEOC complaint alleging age discrimination. I called the EEOC and told them that I did fire the employee but that because the employee was at-will, I could not be charged with age discrimination. The EEOC representative did not accept this explanation. Can I be sued for age discrimination if I am an at-will employer?


Yes, at-will employers can be sued for age discrimination as well as other violations of state and federal law. California Labor section 2922 provides that “an employment, having no specified term, may be terminated at the will of either party on notice to the other.” This code section creates what has been referred to by the courts as a “statutory presumption of at-will employment.” In an effort to re-enforce the statutory presumption, many employers include at-will language in their handbooks. Despite the broad language of section 2922, the at-will presumption does not permit you to terminate an employee for an illegal reason such as the employee’s age. As you have learned, there are many exceptions to the at-will presumption.

An at-will employee cannot be terminated in violation of an express or implied contract to discharge only for good cause. At-will employees also cannot be terminated in violation of public policy, or in violation of any statute. Many statutes limit the discharge of at-will employees. On the federal side, they include the Occupational Safety and Health Act (OSHA), Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), the Consumer Credit Protection Act, Americans with Disabilities Act (ADA), and the Family Medical Leave Act (FMLA).

There are also numerous California laws that restrict the termination of at-will employees. For example, California Labor Code section 96 prohibits the discharge of an employee for lawful conduct occurring during non-working hours away from the employer’s premises. Other California laws that limit an employer’s right to discharge an at-will employee include the California Fair Employment and Housing Act (FEHA), the California Family Rights Act (CFRA), Cal-OSHA and various Labor Code sections that address an employee’s right to take time off from work for certain prescribed purposes.

The issue you raised implicates both federal and state law, including the ADEA and the FEHA. Both of these statutes prohibit an employer from discriminating against an employee on the basis of age. If you terminated the employee or otherwise discriminated against the employee with respect to the terms and conditions of employment based on his/her age, you can be held liable for violating the ADEA and/or the FEHA despite the fact that you are an at-will employer.
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