Warn bosses: Never describe job as ‘permanent’

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in Firing,Human Resources

“At-will” employment is the rule in most states, meaning you can terminate an employee at any time and for any reason (except an unlawful one), as long as you don’t promise a job for a specific length of time.

But supervisors sometimes make the mistake—often during the hiring process or after employees pass a 60-day post-hire period—of using the term “permanent” when discussing their jobs. That essentially promises the person a job for life and it can destroy their at-will status.

Advice: Remind managers to avoid words like “permanent employee.” Even the phrase “Your position is solid here as long as you do a good job,” can imply an employment contract that the court could view as binding.

Make sure you have all employees sign an acknowledgment that their employment is at-will.

Recent case: Apolonio Guerrero began working as a laborer at Ameri­pride in 1979. At the time, the company had no employee handbook. Over the years, he worked his way up to a supervisory position.

Guerrero went out on workers’ compensation for stress. After two years, he tried to return. But Ameri­­pride told him he no longer had a job.

He sued, claiming he was not an at-will employee and could only be fired for cause. His proof? When he was hired, Guerrero said, he was informed that he was a permanent employee, which he took to mean that he could never be fired except for good cause.

The company argued that Guerrero knew other employees were at-will because, as a supervisor, he had explained that fact to his subordinates. He also knew about the at-will provision in the handbook.

That was enough for the court to conclude Guerrero had no reason to believe he was not also an at-will employee. It dismissed his law­suit. (Guerrero v. Ameripride, No. B224309, Court of Appeal of Cali­­for­­nia, 2nd Appellate District, 2011)

Final tip: Also avoid “probationary” period. Using that traditional term to describe the initial 60- or 90-day post-hire evaluation period has created legal problems for some employers. Several courts have concluded that the existence of a probationary period implies that employees who successfully complete it can then be terminated only for cause.

For that reason, it’s best to de­­scribe this as an “introductory,” “training” or “orientation” period. And make sure to have workers sign an acknowledgment of your at-will policy.

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