Reviewing The Seven Tests

Given that California follows the “at-will employment” philosophy, most in Sacramento might assume that only dismissals that discriminate or violate one right are disputable. Yet what is lost in this assumption is the fact that many employees in the state do indeed have employment contracts that protect them from being fired under the at-will model.

Most of those who have actual employment contracts with their employers are guaranteed employment up until the time the terms of their contracts end. That does not mean, however, that an employer can never fire an employee before his or her contract is up. Section 2924 of California’s Labor Code states that a company has cause to fire a contracted employee if there is a willful breach of duty on the part of the employee, or the employee neglects their duty or is continuously incapable of performing it.

Cases, where an employee is unable to perform their job functions, may be easy to define. Those that draw caused by neglect or a breach of duty, however, may be more difficult to argue. Thus, a series of questions (widely known as “The Seven Tests”) have been developed to determine whether an employer had cause to fire an employee. According to California’s Employment Development Department, these are:

  • Did a company give an employee notice regarding the potential consequences of their conduct?
  • Is the rule that was violated related to the company’s business interests?
  • Did the employer investigate the alleged violation?
  • Was the employer’s investigation fair?
  • Does the employer have proof of the employee’s misconduct?
  • Have other employees been treated the same way for similar misconduct?
  • Did the offense warrant the action taken?

Examples stipulating what qualifies as cause to terminate will also be considered when questioning whether a firing was lawful.

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