The Definition and Purpose of At-Will Employment
A Sample At-Will Policy for Your Employee Handbook
At-will employment describes the employment relationship between employers and employees in nearly every state. This type of employment relationship means that the company does not offer tenure or guaranteed employment for any period to any employee without an employment contract or written direction from the CEO/President.
With at-will employment, either the company or the employee can terminate the employment relationship at any time, with or without cause, and with or without notice.
Expectations of the Employer
At-will employment does not mean that employers can arbitrarily fire employees without good faith communication, fairness, and non-discriminatory practices. Courts are increasingly finding for employees in litigation when the employer tells the employee that he has let him go at-will.
Employers must demonstrate a good faith effort to correct the employee's performance or the other issues that led to employment termination. The employer needs to document the employee's performance problems and the efforts that were made to help the employee improve.
This documentation is filed in the employee's personnel record. If a lawsuit occurs as a result of employment termination, the employer is protected by the documentation that led up to the employment termination. It is especially true if all of the documents are signed by the employee to indicate that she saw the documents.
Expectations of the Employee
Likewise, the employee has certain obligations to the employer. Among these are to work with reasonable skill and care, carry out legal employer orders and not disclose confidential company information. Experts recommend that an employee gives his employer two week's notice when he quits. This notice allows the employer and employee to tidy up loose ends. It also gives the employer the opportunity to begin looking for a new employee before the old one leaves, minimizing the amount of time the position is unfilled.
Never Fire an Employee Just Because You Can
"Because we have at-will employment" should never be used as the reason to fire an employee. HR and employment law lawyers' advice can differ widely on how much to tell an employee at the termination meeting, but neither HR nor the lawyer would recommend telling the employee that the termination is because the employer can.
It's much better to refer to the history of employee performance issues that were documented along the way. Simply tell the employee that because of all of the performance issues discussed in the past, his employment is terminated.
Sample Employment At-Will Policy
It is a good idea for employers to include an employment-at-will policy in their employee handbooks for easy reference. The following is a sample which should be customized to your business.
The Company does not offer tenure or any other form of guaranteed employment. Either the Company or the employee can terminate the employment relationship at any time, with or without cause, with or without notice. This is called Employment At-Will.
This employment at-will relationship exists regardless of any other written statements or policies contained in this Handbook or any other Company documents or any verbal statement to the contrary.
Progressive Discipline and Employment At-Will:
While the Company may elect to follow its progressive discipline procedure, the Company is in no way obligated to do so. Using progressive discipline is at the sole discretion of the company in an employment at will workplace.
Exceptions to the Employment At-Will Policy:
No one except The Company’s CEO/President can enter into any kind of employment relationship or agreement that is contrary to the previous statement. To be enforceable, such relationship or agreement must be in writing, signed by the CEO/President, and notarized.