Employment-At-Will

Abstract

Statistics reveal that approximately four out of every one hundred workers are fired or resign from their jobs each month, and an estimated one million workers are fired from their jobs each year (S.M. SACK 99). Many people who are fired are done so unlawfully. When a company terminates an employee unlawfully it can create astronomical financial burdens from lawsuits filed by these employees. In today's society employees have many rights and are protected by laws. Managers must understand these laws in order to protect themselves and their companies from such

law suits. Does employment-at-will have anything to do with the termination of an employee? This will give information on the legal ways to terminate an employee.

Everyday managers are faced with that dreadful task of firing an employee and that question on their mind prior to doing it is probably, "Am I doing this the legal way and will anything come back to haunt me at a later date?" Managers must understand all state and federal laws that pertain to lawful termination and employee rights, the way they do this is by reading company policies and researching all the laws that cover these areas and there are many out there. Therefore, how does employment-at-will work for the employer? The employee?

In order to have a better understanding of how to legally fire someone, you must first understand what "employment-at-will" means and what the exceptions to it are. The basic form of the employee and employer relationship in the private sector is employment at will. Employment at will happens when the length of the employment is not for a specific time and there is no written contract. During the time of employment the employee or the employer can end the relationship for any reason with five exceptions, which will support a wrongful termination. The first exception is a contractual relationship; it exists when employers and employees have a legal agreement regarding how employee problems are dealt with. In this type of situation, a discharge may occur only if it is based on just cause. The second exception is statutory consideration; simply put the law is on the employee's side and is there to protect them against any form of discrimination. The third exception is public policy violation; this means that an employee can not be fired because they fail to obey an order from a supervisor that was illegal. The fourth exception is an implied employment contract; this is any written or verbal statement made by members of the company that suggests company guarantees or promises about continued employment. The fifth and final exception is the breach of good faith; this is a Federal law that makes it illegal for employers to terminate a worker based on the employee's race, gender, national origin, disability, religion or age. It also prohibits employers from firing someone because they are pregnant or have recently given birth.

An example of wrongful termination in percentages for a year, it found that in 2001, charges filed in court for unlawful termination based on disability alone was 20.4% (Ullmann 2004).

Although it may seem so, employment at will does not necessarily mean "at whim" in most states, at least not for employers. According to the Uniform Law Commissioners, a slew of lawsuits starting in the 1980s shot holes in the Employment-At-Will Doctrine, spawn the Model Employment Termination Act. Although employment is still at will on both sides of the fence, states that have adopted the Act now require employers to at least show "good cause" for terminating the employee. But that's only if you are covered by the Act. Even if a state has not adopted the Act, it might have related laws. An employment-at-will agreement might define good cause for termination, as might a policy manual. Still good cause or not, is often a matter of interpretation by the courts or arbitrators. But the Employment-At-Will Doctrine is so strong in the United States, that the courts have sometimes upheld it even though employers proved only weak cause for termination. As long as employers didn't violate other laws, the courts tend to uphold the at-will as common law (Niznik 2002).

For example, if an employee gets fired for allegedly violating a company policy and the employee fights it, a court might consider one or more of the following, to determine whether or not the employer honestly has good cause.

Ð'* If your employer made you aware of the policy and warned you about the consequences of violating it beforehand

Ð'* Whether or not your employer gave you a chance to explain your side of the story

Ð'* Whether or not it's a frivolous policy and if you really did anything wrong to hurt the company or other employees

Ð'* Your employment record at the company

Ð'* How your employer disciplined other employees for similar violations

Ð'* Whether your employer enacted the policy before or after you violated it

Ð'* Whether or not violating company policy was described as good cause for termination in an agreement, employee handbook, or similar document

In this research it was found that employee's have many rights and laws that protect them from employers who may terminate them illegally. As an employer, you must follow certain guidelines to protect the company and yourself from law suits brought on by wrongfully terminated employees. When you fire someone your motive maybe legitimate, but you may still be taken to court, regardless of your actions. There are several steps that you can take to greatly reduce the chances of a former employee suing you and your company and being awarded a large settlement against you. Prior to firing an employee check to see if you had a written or oral contractual commitment that may limit your right to fire. Take a look at the employee's file and check all documents that may have these types of promises or commitments to the employee. Not only should you look at the employee's file, but you should also read the employee handbook and ensure that it makes no promise of job security and explains all reasons for termination. The employee handbook should be looked over by an attorney and explained to the management in easy to understand terms. If an employee does take legal actions against you, then be prepared to show the real reason for the firing. Stiengold's