08.28.06
Employment at Will….Not That Simple
Most of us, regardless if we are an employer or an employee, are familiar with the concept of employment at will. In a nutshell, it means an employer can hire, fire, promote, demote, transfer, discipline or otherwise alter the terms of a worker’s employment for a good reason, a bad reason or no reason at all (that’s the at will part of the equation). However, as with all things in life, the issue is not that cut and dry. There are significant shades of grey that need to be considered when utilizing employment at will.
For example, if the employer and employee somehow reached an agreement that employment was not at will. What’s that mean? You formed either some type of expressed (written contract) or implied (verbal promise) agreement either knowingly or through misunderstanding. It’s important to keep in mind that your employee handbook speaks for you when you are not there. Therefore, it is imperative that if you plan not to limit your employees’ employment-at-will status that your employee handbooks and manuals aren’t drafted in such a manner as to run counter to what you intend. Review applicable state law for more information on compliance.
The other way in which employment at will is no longer applicable is as it applies to illegal termination procedures, such as firing someone based on discrimination or revenge. While you may feel confident that you are not discriminating, take a moment to review traits courts in one or more jurisdictions have ruled are protected:
Age, Race, Color, Religion, National origin, Veteran status, Union activity, Disability, Pension rights, Polygraph, Plant closing, Family and medical leave, Public policy, retaliation, sexual orientation, marital status, height, Weight, Political affiliation, Genetic trait or test, Tobacco use, Recreational activity, and Lawful consumable product.
How a business will respond to situations where their employment at will or other policies are challenged will vary. They are largely dependent upon each company’s individual circumstances. However, regardless if you have one employee or five hundred employees, one important “to do” item should be high on your list. Be sure that you have a policy in place as to how you will handle employee issues and remain consistent and methodical in its application. Furthermore, it’s in your best interest to treat every employee with dignity, respect and fairness. You’d be surprised at how far those basic principles will take you in your current and future employer/employee relations.
