You Want Your Employee Handbook to Protect Employment At Will

Instant Attorney Drafted
Employee Handbooks

Multi-State
Business-employment attorney Jay Eckhaus 

Member of SHRM,
Society for Human Resource Management

At Will Employment - What Is It?

"At Will" Employment is the term used for the basic employment belief 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.

Employment At Will is an Endangered Species

  Employer Beware   An Employee Handbook with poorly written company policies may
                                    be the one instrument that erodes At Will Employment the most.

In using company policies that are 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 actually 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.

7 Things Your Employee Handbook Must Have to Protect Employment At Will

1. Company policies in your Employee Handbook should be written by a business-employment
    law attorney.

2. Your Employee Handbook must be written to comply with your state employment law and
    federal laws.  Most employee lawsuits occur in state courts under state law.

3. Company policies should be easy to implement, and easy to understand, in plain English.

4. A Spanish version of your Employee Handbook should be available for companies that have
    employees whose primary language is Spanish.

5. Proper language protecting At Will Employment must be clearly evidenced throughout the 
    Employee Handbook and in an employer's day-to-day-operations.

6. As an employer, you have an obligation to keep your Employee Handbook up-to-date. 
    State and federal laws frequently change, so must your company policies in order to
    remain compliant and to protect your business.

7. 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.

Other measures employers can take to protect Employment At Will is to:

     •  use pre-employment documents such as applications for employment
     •  use an At Will Employment Agreement 
     •  use HR forms and legal forms that reinforce At Will Employment 

1 Thing You Can Do Right Now to Protect Employment At Will in Your Business

Get the Employee Handbook that Protects Employment At Will in Your State

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 your business maintain At Will Employment.