Employers Group Blog Connection

Misconceptions of "At Will Employment"

Posted by Nicole Vierzba on Wed, Feb 15, 2012

Employment at will is not what your boss might think it is.

There’s a common misconception in the business community, at least for those outside Human Resources circles. Because "employment at will," at its most basic level, stands for the proposition that either an employer or employee may end the employment relationship with or without notice or cause, the assumption is that an employer is absolutely free to terminate an employee whenever it sees fit and shield itself from litigation with the argument that the relationship was, after all, at-will. Certainly, an at-will employer is free to terminate an employee for a good reason, a bad reason, or even no reason at all; however, an employer may never discharge an employee for an illegal reason. In the end, when you look at the proliferation of illegal reasons over the past fifty years, employers who terminate employees for no good reason are playing with fire.

Employers may never terminate an employee in violation of state and federal employment discrimination laws. In California, protected classes include: sex or gender, pregnancy, race, color, national origin or ancestry, religious creed, age (over 40), physical or mental disabilities, medical conditions (including genetic characteristics), marital status, sexual orientation, gender identity or expression, not to mention any additional classes that may be protected at the municipal level. Just because an underperformer is in one of these protected classes does not mean an employer must tolerate their substandard performance. But in employment discrimination, all an employee must initially prove to the governmental agency is that he or she was in a protected class and treated less favorably than those outside the protected class. Next, the investigation turns to the employer to prove a legitimate, nondiscriminatory motive. Hastily made terminations without any supporting documentation invite those governmental agencies to challenge the credibility of the employer’s motive(s). And given the expense of onboarding employees (e.g., training, benefits, etc.), no one just up and decides to fire someone anymore – unless they’re hiding something, or, at least, so goes the argument. Not only can you assume that’s what the agency will be thinking; rest assured that’s what a judge or jury will be thinking as well.

Employment discrimination is not even the only minefield out there. Poorly worded employee handbooks, offer letters, and other written and oral representations made by management to employees can give rise to contracts implied from the promises made in those written or oral statements. And job separations that follow in the heels of employees who have recently exercised legal rights or civic duties (or refused an employer’s demands to commit an illegal act) can give rise to the public policy exception to employment at will. Employment at-will still has value for employers but don’t wrongly assume it’s a failsafe. Rather, leave the at-will arguments to your attorney and ensure every termination has a good reason supported by written documentation.

Topics: hr policy, termination, policies