Don't Rely on Employment At Will

Most managers operate under the delusion that the concept of “employment at will” will save their bacon when they don’t want to mess with an employee anymore.  Just fire them.  Done.  After all, that’s what employment “at will” is all about right?

Wrong. 

It’s true that, in general, “employment at will” means that either the employer or the employee can end the work relationship for any reason or . . . no reason at all . . . as long it there wasn’t an illegal reason.  Just like that.  You can be free to work with other employers.

The main idea behind “employment at will” is that neither party is required to continue working together for a specific amount of time.  And you’re thinking, so what? Isn’t that how it’s always been? 

Nope.

Employment at will evolved in the 1870’s, when laissez faire capitalism was starting to gather steam.  Before this time most employment relationships were presumed to be for a year at a time.  There was no quitting after a few weeks because you got a better offer. The doctrine of “employment at will” simply eliminated the presumption of a one-year employment term, allowing worker and employer to end the relationship whenever it didn’t suit either any longer.

Today in many states, “employment at will” has qualifiers.  In Utah, “employment at will” is still subject to notions of fairness regarding the reason an employment relationship ends.  In Utah, when you terminate an employee, the decision is subject to 3 notions of fairness, including (1) whether there was an implied contract (like making explicit verbal or written promises to an employee about job security) , (2) an implied covenant of “good faith and fair dealing” (aka requiring “just cause” to let someone go), or (3) whether the termination violates explicit, well-establish public policy (e.g., you can’t fire someone just because they filed a workers’ comp claim).

So, the next time, you’re fed up and just want to make an employee go away, hoping “employment at will” will be the reason.  Think again.  Here are 4 suggestions for laying groundwork just in case you end up firing someone:

1.            Have an “employment at will” statement in your employee handbook or employee policies.  Make sure all employees receive a copy of the handbook or policies when they are hired.

2.            Be honest with an employee about how he is not meeting your expectations.

3.            Don’t delay in addressing employee issues, thinking they will go away on their own.  They won’t.

4.            Talk to the employee in private about the issue(s).  AND summarize this conversation in the form of a memo of understanding (on company letterhead & dated) that clearly states the issue and what the employee is expected to do to conform to your expectations or to company policy.

5.            If the problem persists, issue a written warning to the employee(on company letterhead & dated), re-stating the problem , when you addressed it before with him, and noting that it is a serious matter that the employee must correct.  State in the warning that the employee will be “subject to discipline, up to and including dismissal”, if he doesn’t correct the problem.  Get the employee’s signature on this warning or at least have someone witness that you gave him the written warning if he refuses to sign it (and some employees will refuse to sign).

If the employee doesn’t correct the problem after getting a warning, you could discipline with an unpaid suspension or even termination.

With this basic documentation in place, an employer has a good chance of prevailing on an unemployment claim or even a workplace discrimination claim these basic with documents, showing the employee knew there was a problem and failed to correct it.

Nothing is a sure bet when dealing with employees. But don’t rely on “employment at will” as your only reason for terminating an employee.