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Employment-at-Will & Terminations: Advice for Employers

If an employee challenges a termination, it can sometimes be difficult for the employer to prove that the dismissal was neither discriminatory nor retaliatory, especially if the employee is a member of a protected class.

Due to the limitations placed on the at-will doctrine, some argue that it has eroded to the point that it is meaningless. For example, simply making a comment to an employee such as, “you will have a job as long as you do good work,” may be considered to be a guarantee of employment and the at-will relationship might no longer apply.

Advice for Employers

  • Be mindful of the language used in employee handbooks, in interactions with job applicants and with employees. Watch for any statements that could be interpreted in a way that would challenge the at-will relationship.
  • Have consistent practices in place for progressive discipline and documentation. Thoroughly review the circumstances for all terminations.
  • Throughout the course of employment, ensure that every employee is made aware of the expectations of his or her job. When an employee is not meeting expectations, meet with the employee to discuss the situation and what must be done to improve. Give the employee an opportunity to respond and to offer an explanation.
  • Do not terminate in the heat of the moment. Aside from rare circumstance where there is actual danger involved, very few situations require an on-the-spot termination.

Mistakes to Watch For

“At-will” employment generally is not a viable defense should an employer find themselves in a position where they must defend a decision in response to an Equal Employment Opportunity Commission or other state or federal charge. Some mistakes to watch for are:

  • Lack of documentation. You may be able to verbally justify the reason for termination, but without supporting documentation (made at the time of the infraction), the employer’s reason(s) may be disregarded.
  • Inconsistent treatment. Disciplining employees differently for the same or similar infractions leads investigators to look for more nefarious and potentially illegal reasons for the reprimand, such as discrimination or retaliation.
  • Punishment that does not fit the crime. Termination or overly harsh punishment for minor infractions may appear to an investigator as a smokescreen to disguise a termination or punishment motivated by discriminatory reasons.

While sometimes the first response to a problem employee is an emotional one, employers should avoid acting on such emotions. Making snap disciplinary or termination decisions can leave an employer in a vulnerable position if the employer has not been diligent in handling the situation previously.

Employers should seek the advice of experienced human resources professionals to ensure that they are aware of any risks that may come with terminations and available options to minimize any such risks.