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Employment-at-will: FAQs

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in Employment Law,Human Resources

Employment-at-will says that unless an employee is hired for a specific term, either the employer or employee can end the employment relationship at any time, for any reason, or no reason at all.

But employers have the added burden of ensuring that: no terminations are based on a protected activity or a biased choice; public policy exceptions to at-will employment are not breached; and no documents have created an inadvertent employment contract, thus negating the employment-at-will concept.

1. What is the doctrine of employment-at-will?

The doctrine of employment at-will says that unless an employee is hired for a specific term, it's safe to assume he/she has been hired in an at-will situation. This means that an employee is free to quit a job at any time for any reason or no reason at all. It also gives the employer the same rights in terminating the employment.

2. What is a public policy exception to employment-at-will?

A public policy exception protects employees from being fired because they:

  • refused to commit a crime;
  • were performing a public duty or upholding the law; or
  • reported or disclosed an alleged violation of law to an appropriate government agency.
3. How can employers ensure that their employment documents don't inadvertently negate employees' at-will status?

Careless words in an employee handbook, employment application, job-offer letter, employment proposal, or non-compete agreement can hurt an employer, even if they are written with the best intentions. Strip out suspicious "contract" language from your employment documents with these do's and don'ts.

  • Do make a disclaimer prominent; that means it should be presented in large type, boldface, capital letters. It should state that employment is strictly "at-will," meaning the relationship is not governed by an oral or written contract or guarantee of employment, and can be terminated at any time, with or without cause or advance notice.
  • Do state that the document itself is not a contract, and can't ever be altered (e.g., by a manager's subsequent promise) to become one.
  • Do limit information presented on a sign-off sheet. It should reiterate the at-will policy — and nothing else. By signing, the employee agrees to be employed at-will.
  • Don't use restrictive language such as "will", "must", or "in all cases". It may hold you to a promise you don't want to keep.
  • Do insert a bypass clause in disciplinary policies, allowing supervisors to fire employees for reasons not on the stated list of offenses.
  • Do eliminate time frame references such as "probationary period", which may hold open the promise of continued or permanent employment. Use "training", "orientation", or "trial period" instead.
  • Don't list offenses to begin with. Even if they don't sue, employees may think "these are the only reasons I can be fired" and act accordingly.

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