Employee handbook

At Will Employment - What Is It?

"At Will" employment is the term used for the basic employment adage 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.

Employer Beware

Employment at will is an endangered species.

Many employers do not realize that an employee handbook with ill-conceived company
policies may be the one instrument that erodes at will employment the most.

In using company policies 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 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.
Characteristics of an Employee Handbook Written to Protect Employment At Will

1. The company policies in an employee handbook should be written by an attorney

skilled in business and employment law.

2. Your employee handbook must be written to comply with both state law and federal
law as many employee claims occur in state courts under state law.

3. The company policies should be easy to implement, and in plain English.

4. A Spanish version should be available for profit and not-for profit organizations that
have employees whose primary language is Spanish.

5. Proper language protecting at will employment must be clearly evidenced throughout

the Employee Manual and in an employer's day-to-day-operations.

6. 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.

7. As an employer, you must keep your employee manual up-to-date. State and federal
laws frequently change, so must your company policies.

Another step that employers can take to protect employment at will is to use pre-
employment documents such as applications from employment, an At Will Employment
Agreement and other HR forms and legal forms that reinforce at will employment.

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 businesses and not-for-profit organizations maintain at will employment.