At-will environment and employment termination

by on May 27, 2009 · 0 Comment POSTED IN: HR Info Center

The consequences of the “at will” employment termination

“At-will” means the company has the right to fire an employee at-will. Yes, I can walk up to someone and say “You’re fired” without giving any kind of reason or justification. It can be a useful thing to keep on the backburner, but as a general rule you shouldn’t use at-will as a reason for employment termination for a couple of reasons.

It scares good people.
You might have a bad day and just fire an employee, when on any other day they would have been just fine. Employment termination scares good people because then they get convinced that they’re next. And this generation, they know they’re talented and they know they’re hard to find.

And even in tough times, some of your companies may be going through a reduction in force on one side and trying to find decent people and doing everything we can to keep the good people on the other side.

So these times can put managers and supervisors in an uncomfortable situation. This puts a lot of pressure on us to deal with our problem people. But the at-will situation, which a lot of people tend to like to bring out when discussing an employment termination, can also lead to a lot of problems.

Some states modify it a bit. You may have the right to at-will employee termination, but the employee still holds the right to sue at-will. Employers get confused and ask what they can sue for, and the answer can be found by looking at “the list”. Even if the guy who gets fired is a white guy under 40, some states drop down and make 18, anything over 18 is age discrimination. But federal government pretty much sticks with 40. So if they’re under 40, okay age is out.

Everyone has cause to sue
But then, sex. Well, man, woman, they got a sex, they can sue for that. It’s sex. Race, white still counts, black, Hispanic, American Indian, Native American, (too many choices) there. Don’t forget religion either; if they’re the only Baptist in the Lutheran town or the only Catholic, then they can go after that.

The burden of proof is on the employer in employment termination cases.
All they have to do is show they lost a job and it’s because of my religion. And the EEOC of the state may want you to prove that the employment termination wasn’t based on religion. Well, if you’ve got no documentation, then you keep your fingers crossed.

So this concept of “at-will” employment termination isn’t as easy as people want to make it. You can fire an employee at-will, but the burden is still on you. It’s in your best business interest as well as your best legal interest that you give people reasonable chances to save their job.

Edited remarks from the Rapid Learning Institute webinar: “Yes, You Can Fire Without Fear! What Every Supervisor Needs to Know” by Hunter Lott, Esq. on April 2, 2008

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