Structuring California terminations to minimize exposure.

Why California terminations need structure

California is at-will. In theory, employers can terminate any employee for any reason (or no reason) without notice. In practice, the at-will doctrine has more exceptions than the rule. Public-policy violations, breach of implied contract, breach of the covenant of good faith and fair dealing, FEHA discrimination and retaliation, Cal Lab Code §1102.5 whistleblower retaliation — each is a wrongful-termination theory California plaintiffs use regularly.

The right termination is documented, timed, and structured to take those theories off the table. The wrong termination — even of an objectively bad employee — produces lawsuits.

What termination counsel actually does

1. Pre-termination assessment

Before the termination decision is final, we review the documentation: performance reviews, prior write-ups, any complaints the employee has made, any protected-activity participation, anything that could support a retaliation theory. We identify the specific theories the employee could pursue and assess the strength of each.

2. Documentation review and gap-fill

If the documentation is thin, we identify what additional documentation can reasonably be created (without backdating or creating sham records) before the termination. Performance memos, witness statements, policy-violation records — whatever supports the legitimate, non-retaliatory basis for the termination.

3. Timing

When to terminate matters. Terminations within weeks of an employee's protected activity (complaint, leave request, whistleblower report) are presumptively retaliatory. Sometimes timing has to slow down; sometimes it has to speed up to avoid a worse window.

4. Severance decision

Whether to offer severance, how much, what release language, what consideration period. Severance with a properly drafted release closes most wrongful-termination exposure but adds cost. The right answer depends on the specific exposure and the employee's likely behavior.

5. Termination logistics

Final paycheck timing under Cal Lab Code §201/202 (immediate at termination for involuntary, within 72 hours for voluntary). Continuation of benefits (COBRA / Cal-COBRA notices). Return of company property. Access revocation. Communication to the rest of the team.

6. Post-termination posture

How to respond if the employee files for unemployment, files an EEOC/DFEH charge, files a wage claim, contacts an attorney. Pre-positioning saves time and avoids missteps.

Common California termination mistakes

Final paycheck delays. Cal Lab Code §201/202 requires immediate payment of all wages on involuntary termination. Late payment triggers waiting-time penalties — up to 30 days of wages — under §203. Common mistake on quickly-arranged terminations.

Inconsistent justification. Telling the employee one thing, telling the EDD another, and saying a third thing in a complaint response. Inconsistencies become the centerpiece of wrongful-termination theories.

Surprise terminations of complainants. An employee filed an internal harassment complaint two months ago and the company terminates them now "for performance." Even with strong performance documentation, the timing creates a presumptive-retaliation argument.

Missed COBRA / Cal-COBRA notices. Federal COBRA and California Cal-COBRA require specific notices on specific timelines. Missed notices create exposure independent of the termination itself.

Severance without a release. Paying severance without obtaining a release leaves the company exposed to wrongful-termination claims and the employee enriched. The release is the consideration the company is paying for.

Where severance is the right move

Severance + release is appropriate when:

The employee has any meaningful potential wrongful-termination claim — protected activity, leave participation, complaint history, age 40+, pregnancy, disability, recent FMLA/CFRA leave, or any other protected category.

The termination is at-will but the employee is likely to file for unemployment or pursue a claim regardless.

The company wants a clean break — non-disparagement, return of company property, retention of confidentiality.

Severance amount typically: 1-2 weeks of pay per year of service for line-level employees, 4-12 weeks for managers, 6-12 months for executives. Release language has to be Older Workers Benefit Protection Act-compliant for employees 40+.