At-Will Employment Simplified

In the previous post we discussed my struggle with creating an at-will employment disclaimer for the staffing manual. It was mentioned that many applicants may not understand the potential benefits and consequences of at will employment and we will pursue this train of thought in this post.

Before we go any further in this discussion, it is important to understand what at-will employment is. In short, at-will employment means that your employer can fire you or ask you to resign at any time, for any reason or no reason, and with or without notice. Conversely as an employee, you can leave your employer at any time for any reason or no reason and with or without notice. You might be thinking, "There's an exception to every rule." If so, then you are correct. There are a few exceptions to at-will employment.

The first exception is called the "public policy exception" which means that an employer cannot fire you if the reason violates state law, or if you refuse to violate state law.

The second exception, "implied contract," means that any policies and written or oral promises that are made by your employer may constitute an employment contract (some call this a "gentleman's contract" or "handshake agreement"). However, many states support disclaimers that are used to invalidate the policies and promises made that guarantee the terms of employment. Also, some states do not automatically assume that the presence of a disclaimer cancels an implied contract and a few states do not recognize implied contracts (with or without a disclaimer). In short, even if your employer has outlined a disciplinary process in its employee handbook or promised you employment for a specific period of time, your employer may not have to follow that process or wait before firing you.

Finally, the "covenant of good faith exception" states that an employer cannot fire an employee in "bad faith." Simply put, this means that your employer cannot fire you for dishonest reasons such as to avoid paying for retirement or severance benefits. However, most states do not recognize this exception.

Hopefully this has helped to better your understanding of the at-will disclaimers that you see on employment applications or in your employee handbook. The next post will demonstrate the importance of understanding these disclaimers before you sign an application or an employee handbook.

Thank you for reading, and warm regards.

At-Will Employment: An Employee's Perspective

During the winter break I prepared some work samples to share with readers and prospective employers.

While putting the final touches on the staffing manual that is included in the work samples, I recalled struggling with the application form because of the legal verbiage that is seen on the last page of many application forms. This verbiage asks the applicant to confirm that the information the applicant provided is true to the best of her/his knowledge, that the applicant understands that a job offer may be contingent upon factors such as drug test and criminal background check results, and the disclaimers that discuss the terms of employment.

I became so frustrated that I asked my mentor, Yvonne, if the ability to create this legal verbiage from scratch was relevant. She pointed out to me that HR students needed to understand what the legal verbiage meant because we would need to explain it to applicants and because we needed to understand the laws that the legal verbiage referred to. That was when it hit me. While many applicants and employees can recite the "at-will disclaimer" verbatim, they may not truly understand what it means or understand its implications. I know I didn't until I encountered a situation in my personal life that made me realize the benefits and consequences of at-will employment.

In the next post we will continue this discussion by defining what at-will employment means in plain English. Until then, thank you for reading.