Employee Handbook – Protecting at Will Employment

At Will Employment – What Is It?

“At Will” employment is the term used for the basic employment adage that an employer can fire any worker for any reason or for no reason at all… for good cause or bad cause; an employee is employed “at the will” of the employer and the employer determines how long to employ a worker.

Employers need to be aware that legislation and court decisions in a number of states have eroded employment at will. Courts and legislatures are finding reasons to require just cause — a rational business justification — before employment is terminated.

Employer Beware

Employment at will is an endangered species.

Many employers do not realize that an employee handbook with ill-conceived company policies may be the one instrument that erodes at will employment the most.

In using company policies not properly written or where disciplinary steps are outlined, the company policies may inadvertently hold out the promise to employees that employees will remain employed as long as performance is satisfactory.

For years a number of courts in various states have sought to erode at will employment through the legal theory known as “Implied Contract.” These courts have found that improperly written policies in an employee handbook create an “Implied Contract” of employment.

Implied Contract means that as a result of an employer’s conduct, an employee has an “implied” contract with the employer requiring that an employee’s discharge be based on “cause,” such as an employee’s wrongdoing or inability to perform the job. Courts frequently look at the company’s policies in making such a determination. It is most important that company policies and other wording in your employee handbook be properly written in order to maintain at will employment.

A specific disclaimer in the employee handbook can preserve the at will employment relationship in the face of an employee’s Implied Contract claim. Not every disclaimer will have the desired effect of maintaining at will employment in the workplace. The disclaimer is best written by an attorney skilled in employment law.

A business, profit and not-for-profit, must use an effective employee handbook with policies crafted to protect employment at will.

Characteristics of an Employee Handbook Written to Protect Employment At Will

1. The company policies in an employee handbook should be written by an attorney skilled in business and employment law.

2. Your employee handbook must be written to comply with both state law and federal law as many employee claims occur in state courts under state law.

3. The company policies should be easy to implement, and in plain English.

4. A Spanish version should be available for profit and not-for profit organizations that have employees whose primary language is Spanish.

5. Proper language protecting at will employment must be clearly evidenced throughout the Employee Manual and in an employer’s day-to-day-operations.

6. In Puerto Rico, “Just Cause” is required before an employee can be terminated. If you are an employer with operations in Puerto Rico, your Puerto Rico Employee Manual must have a policy on Just Cause Termination.

7. As an employer, you must keep your employee manual up-to-date. State and federal laws frequently change, so must your company policies.

Another step that employers can take to protect employment at will is to use pre-employment documents such as applications from employment, an At Will Employment Agreement and other HR forms and legal forms that reinforce at will employment.

Conclusion

While no one can guarantee that in any particular situation, a court or legislature in a specific state may seek to avoid at will employment, the steps outlined in this article will help businesses and not-for-profit organizations maintain at will employment.

 

About the author

Jay E. Eckhaus, Esq. is a business – employment law attorney who has represented major corporations and entrepreneurs for over 35 years. Jay writes all of the employee handbooks, HR Forms and Legal Agreements for FingerTip Manuals. Start protecting your business now from employee lawsuits. Choose from 52 employee handbooks that comply with your state’s laws and federal laws. Visit us at: http://www.fingertipmanuals.com

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Jessica Miller-Merrell

Jessica Miller-Merrell

Jessica Miller-Merrell (@jmillermerrell) is a workplace change agent, author and consultant focused on human resources and talent acquisition living in Austin, TX. Recognized by Forbes as a top 50 social media influencer and is a global speaker. She’s the founder of Workology, a workplace HR resource and host of the Workology Podcast.

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