“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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