At Will Employment

Under the common law in theUnited States, the employer-employee relationship is governed by the doctrine of “employment at will.” Employment continues only so long as both parties agree to it; unless there is a contract specifying otherwise, an employer may discharge an employee at any time without notice and without cause. The courts have held that the meaning of “employment at will” is that an employee may be discharged for good reasons, for bad reasons, or for no reasons at all, without giving the employee any legal grounds to sue for reinstatement or damages.

 

When an employee’s continued employment depends entirely upon the willingness of the employer to retain him or her. In other words, the employee has no contractual or other right to the job and, strictly speaking, can be dismissed for any reason or at the whim of the employer. However, because employment in theUnited Statesis now regulated by myriad labor relations, civil rights, wage, hour, health, and safety laws, the term “employment at will” is often used more loosely to mean that the employee can be dismissed at the will of the employer without significant procedural safeguards. In the public-sector, employment at will, which typically pertains to high-level or confidential political appointees, stands in distinction to civil service employees who can be fired only for just cause and have constitutional due process protection against arbitrary, capricious, or unlawful dismissals.

 

Under the at-will employment doctrine, either the employer or the employee can terminate the employment relationship at any time and for virtually any reason, as long as the reason for termination is not prohibited by law (e.g., discrimination on the basis of race or gender). The practical effect is that in many situations, anyone can be fired, and the employer is under no obligation to provide a rationale for firing that individual.

 

In written employment policies, including the employee handbook or personnel manual, state clearly that employment at your company is at will and explain what this means. Consider asking employees to sign a simple form or offer letter acknowledging that their employment is at will. A worker who has signed such a form will have a difficult time refuting it later.

 

Many employers have an initial probationary or temporary period for new employees, during which the company is free to fire the worker. Workers who survive this period are called permanent employees, entitled to benefits and so forth. To some courts, this language implies that an employee who becomes permanent can be fired only for good cause. If your company uses a probation period and you are responsible for writing company policies, make clear that the company retains the right to fire at will once the probationary period is over.

 

If you tell employees that their jobs are secure, that they will not be fired without good cause, or even that the company has never had to fire a worker, you risk creating an expectation that they will not be fired. Avoid these types of comments; they are particularly common when interviewing potential employees and giving performance reviews.