Checklist: At-Will Employees

What basic rules should be followed with at-will employees?

• Don't fire an employee for a reason that would violate some basic principle of law, or moral or social justice. Most public policy exceptions are based on state law; for example, state workers' compensation law. If an employer fires an employee for filing a workers' compensation claim -- a right the employee is given by law -- that firing would violate the state's policy of providing workers' compensation benefits to individuals who are injured on the job.
• Don't distribute an employee handout that says you will only discharge for just cause and then fire an employee on the basis of rumor that turns out to be wrong.
• If you have a handbook, be sure you -- and everyone with authority to hire and fire -- know what it says.
• Use disclaimers, if needed, and place them prominently in the handbook or on the document so that employees know what your intentions are.
• Caution those who interview applicants against making statements promising job security or disciplinary measures to be followed before discharge.
• Check your application for language that could be read to mean that your handbook is a contract of employment or that just cause is required before an employee may be terminated.
• Sometimes when a discharge seems particularly unfair but there is no specific promise that has been broken or public policy that has been violated, the employee will argue that the employer simply did not deal fairly or in good faith when it discharged the employee. Courts have been reluctant to recognize a covenant of good faith and fair dealing in the employment situation, fearing that once available, the covenant would be too broadly applied. However, under particularly egregious circumstances, the covenant may be raised and the results could be financially disastrous.
• Try to be fair. Treat employees as human beings and as you would like to be treated. An employer that maliciously discharges an employee to avoid paying commissions or bonuses is primed for a lawsuit.

Reprinted with permission. © CCH