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Termination and at will employment

Most employees are considered to be “at will” employees. What that means in plain English is that the employee is free to leave at any time, for any reason, and with or without notice. Yes, the days of involuntary servitude are over. An employee is free to leave at any time, for any reason, without providing you the courtesy of notice. The notion of “at will” employment also envisions that you, as the employer,can terminate an employee at any time, for any reason, with or without notice, and without consideration for length of service. While the principle of ” at will” employment seems rather straightforward, the execution is not. This is primarily the result of advice given by members of local taverns and diners, none of whom have a license to practice law. After all, why get a license to practice law when you can wax poetic about your uncle Cecil’s legal problems and how he is the bastion of all knowledge on issues of employment law? The difference between the well-meaning friends at the local diner or tavern and your lawyer is that the former will often get you sued. In case you haven’t been sued, let me share a secret. It’s more expensive to defend an employment lawsuit than to pay for an hour of your lawyer’s time to get the correct advice. Sorry, as I get older I tend to digress.

Employment at will was never meant to be confusing. It is supposed to be simple. With the exception of protections provided by statute, employers are supposed to be free to terminate employees at any time and for any reason. Conversely, employees should be feel free to leave at any time for any reason even if that means they don’t provide you with advanced notice.

Then why the problem? The answer is easy. Employers make promises they don’t have to make. For example, employers, in an effort to make employees feel part of the team, adopted a concept known as an introductory period or probationary period. During the probationary period, the employee was led to believe that they could be terminated for any reason including the slightest infraction. This led employees to conclude that once the probationary period expired they could only be terminated for cause. What employers failed to communicate is that they never intended the nature of the employment relationship to change after the expiration of the probationary period. To further confuse employees, employers began to adopt progressive discipline policies. The rubric under which these were adopted was to make employees feel that all employees were treated equally. Once again problems arose in the execution of these policies. First, progressive discipline policies can never anticipate every conceivable circumstance. Second, employees did not understand that progressive discipline policies were intended to be advisory in nature only.

When I say, “keep it clean” I mean that the message that you, as an employer, convey should be clear when addressing the issue of the nature of the employment relationship. That doesn’t mean that you should not have a progressive discipline policy. It does mean that your progressive discipline policy should clearly state that it is for purposes of guidance only and that management reserves the right to terminate employment at any time for, for any reason, and with or without compliance with the progressive discipline policy.

My mother had a saying when I was a smart mouthed teenager, “It’s the tone that makes the music.” This was my mother’s way of saying that she didn’t appreciate the sarcastic tone of my voice. The same holds true in your communications with your employees. You, set the tone of your company, and, in turn, the expectations of your employees. It is, therefore, imperitive that you are consistent in all of your dealings with the employee. A prime example of this is the employment handbook. Most handbooks address the at will nature of employment in two areas. The first is the disclaimer and the second is the obligatory at will policy. Unfortunately the disclaimer and at will policy are in the front of the handbook and are long forgotten by the time the employee gets to the end of the handbook. None of the other policies remind the employee that any promise made does not change their status as an at will employee.


If there’s nothing else that you take away from this Blog post, hopefully, the following three items will resonate with you:

1. Don’t make promises you don’t have to make.

Your employees are relatively sophisticated. They understand that you are running a business. You don’t have to persuade them that you are one happy family that will stay together forever. If you try, they won’t believe you. So be honest. Don’t make promises in your handbook, or any literature you publish, that is inconsistent with reality. Your employees will appreciate it.

2. Get your advice from your employment lawyer, not the know-it-all at the local tavern or diner.

While “Cheers” may be the place where everyone knows your name, it is not the appropriate locale to get legal advice. Over the years I have heard a variety of advice given in local taverns and diners that had no correlation with the status of existing law. This is particularly true when it comes to the issue of terminating an employee. Termination is a serious event that merits implementation of the plan that will minimize future adverse consequences.

3. Be consistent.

All employees should be treated similarly. That means that your most irritating, obnoxious employee should receive the same treatment as the most popular employee. That more than anything else will avoid many workplace lawsuits.

Coming up:

I know I started this series in November with a promise not to keep you hanging, but I just couldn’t bring myself to write about termination during the holiday season. In my next post in this series we will discuss discipline and documentation.



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