If I want to fire an employee, can't I just fire at-will?

by on May 22, 2009 · 0 Comment POSTED IN: HR Info Center

To fire an employee based on “at will’ circumstances is dubious at best

Most employers rarely use the at-will to fine an employee. It’s a one in 1,000 situation. Every state in the country is at-will. Montana modifies it a little bit. You have a right to fire an employee at will. The employees have the right to sue at will.

Beyond the legal considerations, think of managers that have a bad day with supervisors. Given the right to fire an employee at-will whenever they wanted, some supervisors would have bad days where they’d just fire anyone and everyone.

To fire an employee at will dares them to sue
It’s much better when managers or supervisors have to go through HR over another boss to kind of settle things in. If you use the at-will doctrine too frequently, you scare good people. Especially in uncertain times, if you start walking around just firing employees at-will without offering any kind of warning or reason, it’s going to scare your good employees away.

So it’s an option that you have, and should use rarely. Using it is basically betting – you’re daring someone to sue. So use it with caution. It is not only in my legal best interest but emotional best interest as well. Productivity-wise, this sends a message to all employees, “Hey, that employee was given a reasonable chance to save their job and they chose not to take it. So they were fired.”

Probationary periods are not an open invitation to fire an employee
Probationary periods do not give us, in most cases, any more rights to sue. If you’re non-union, non-government, the probationary period now can limit our rights to fire.

Probationary periods are for union or government. They mean you have no right to grieve. The rest of us, non-union, non-government, probationary periods can risk our at-will relationship.

Think about this. You hire Sam. You put him on a 90-day probationary period. On day 89, you go screaming to HR, “You’ve got to fire Sam. You got to fire Sam. It’s day 89.”

And of course what does HR say? They ask for your documentation. Well, HR pulls the file. “You’re right, Hunter. There’s no documentation. But you miscounted. It’s day 93.” Thus, Sam successfully completed his probationary period. Thus, we may have risked the at-will relationship with Sam forever.

Don’t be surprised on the non-union, non-government, the probationary periods were taken out of our practices. It basically means then, as a supervisor, communicate expectations and hold people accountable from day one. So essentially an employee is on probation the minute they are hired and such a period never ends.

These are the edited remarks from the Rapid Learning Institute webinar:
“Yes, You Can Fire Without Fear! What Every Supervisor Needs to Know” hosted by Hunter Lott, Esq. on September 22, 2008

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