©2024 Seyfarth Shaw LLP www.seyfarth.com 2024 Cal-Peculiarities | 101 The California version forbids firing an employee because the employee’s name appears on the Megan’s Law website, as the law authorizes use of information disclosed pursuant to the law “only to protect a person at risk” and prohibits use of the information for purposes relating to employment.202 Someone aggrieved by a “misuse” of Megan’s Law information may sue for actual damages, punitive damages, and a civil penalty of up to $25,000.203 Employers may still use independent means, such as background checks, to learn whether an applicant or employee is a convicted sex offender.204 Indeed, some employers, such as school districts, must not hire convicted sex offenders, and must perform due diligence to fulfill that duty.205 5.5 Claims for Breach of Contract of Continued Employment 5.5.1 Implied contracts to dismiss only for good cause California nominally recognizes the doctrine of employment at will, which gives both employee and employer the contractual right to end the employment relationship without cause or prior notice.206 California also recognizes, however, that circumstances may create an implied contract that requires the employer to make important employment decisions only for “good cause.” The ease of plaintiff’s proof. California judges routinely invite juries to find an “implied-in-fact contract” of continued employment, by which an employee can be discharged only for “good cause.” The jury may infer such a contract from common incidents of employment, such as longevity, personnel policies or practices, assurances of continued employment, good performance reviews, merit raises, and industry practices.207 The problem with traditional disclaimers. Because California juries can so easily infer an implied contract of continued employment, the presumption of employment at will is, as a practical matter, reversed: juries often will require “good cause” for discharge unless the parties have expressly provided, in writing, for employment at will. Moreover, unilateral statements by the employer to this effect are not necessarily conclusive.208 Accordingly, the only reasonably effective way for employers to ensure at-will status is to have the employee sign contract-like statements to that effect. An at-will provision in an express written agreement signed by the employee cannot be overcome by a contrary implied agreement.209 To preclude jury findings of implied promises of continued employment, express employment-at-will statements should also appear everywhere the employer states a policy regarding factors the employer will consider in terminating or changing the terms of employment, and in confidentiality agreements and other agreements that the employee signs.210 California employers sometimes make the mistake of relying on certain disclaimer language that generally works outside California. Employers traditionally sought to shield themselves from implied-contract claims by placing disclaimers in handbooks and job applications to the effect that “this policy is not a contract.” That language can have unintended consequences for the California employer who wishes to use a handbook or job application as a shield against claims for breach of implied contract. In one case, at-will language appearing in a job application failed to preclude a contract claim, because the application also contained broad “no contract” language; the Court of Appeal reasoned that the application could not “establish a binding employment condition [i.e., at-will employment] while at the same time expressly providing that neither the application nor subsequent communications can create a binding employment condition or contract.”211 A better approach, under California law, would be to state that the employment-at-will language is contractual and that other language appearing in the document in question—whether it be a handbook, job application, or employment policy—is not a promise of continued employment.
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