Introduction At Will Employment
In most states employment is presumed to be "at will" - employees are presumed to be free to leave at any time, and likewise, employers are presumed to be free to terminate employees at any time, so long as the reason is not an unlawful reason, such as discrimination, and so long as there is no express or implied contract to the contrary. Thus, the question arises - What constitutes an express or implied contract to the
contrary?
5 Ways To Preserve Your At-Will Employer Status
1. Have a written at will policy. If an employer wants to preserve the right to terminate "at will," then the employer should maintain a written "at will" policy in at least six different places, including: (1) the employment application, (2) the offer of employment letter; (3) the employee handbook or manual; (4) the employee acknowledgment form for receipt of handbook; (5) in employee written performance evaluations; and (6) in any employee progressive discipline forms, i.e. warnings.
The policy must clearly state that employment is "at will", that employees can terminate their employment at any time, and that the employer can terminate employment at any time, with or without cause and with or without notice. It is also important to have an integrated at will policy that is acknowledged by all employees, and which states that all prior agreements are superceded by the at will policy.
2. Do not make any representations of continued employment. Employers, managers and supervisors must not make any representations of guaranteed employment for any specified period of time. Statements such as, "no one is ever fired here," or "the company only terminates for a good reason" are contrary to "at will" employment. Those representations can be viewed as company practices, and have as much force and
effect as a written policy.
3. Do not have a mandatory progressive discipline policy. Employers should not have a mandatory progressive discipline policy, which requires that certain disciplinary steps be taken before termination. If there is such a policy, there is the implication, and an expectation, that the employer can only terminate, if and only if, it follows every step of progressive discipline.
4. Review the Employee Handbook. Most employers already have "at will" provisions in their employee handbooks. Other loosely-drafted handbook provisions, however, can undermine "at will" employment policies. For example, a provision requiring a progressive discipline policy may be interpreted as a contract requiring the employer to use that policy fully before terminating any employee. A court could now decide that such a policy overrides the "at will" agreement.
5. Provide "Consideration" to Present Employees. It is probably legally sufficient for employers to bind their current employees to the terms of an "at will" policy simply by distributing copies of the policy to them. Yet some courts may require employers to give employees something more tangible than "continued employment" in exchange for accepting "at will" employment. Because of this, consider distributing the policy in connection with some tangible employee benefit, such as the annual bonus. For new hires, consider adding a provision to your employee offer letter.
Tips for Mitigating Problems in Your Employee Manual
1. Give yourself flexibility: For example, do not say "employees who fail to perform their jobs in a satisfactory manner will be so advised and given an opportunity to improve their performance." Instead say "employees who fail to perform their jobs in a satisfactory manner will be so advised, and where management considers it appropriate, given an opportunity to improve their performance."
2. Keep the promises you make: Courts may view the handbook as part of an implied contract. Remember that your company's failure to follow a policy might be a breach of contract. Deviations should be documented, and supported by verifiable legitimate, business reasons.
3. Be absolutely consistent: Make sure that all of your employment policies are consistent with your "at will" policy.
Conclusion
Fine-tuning your practices and having your employee handbook reviewed by a local corporate-business or employment law attorney for potential inconsistencies will help protect your "at will" employer status, and reduce the risk of litigation.
