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At-Will Employment Isn’t A Free Pass For Employers

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The majority, but not all, states refer to their relationships with employees as “at-will.” If you operate your business in one of these states and somehow have the misconception, this gives you a free pass to fire people without documentation, think again.

Yes, the technical at-will language states that an employer may terminate an employee at any time for any legal and non-discriminatory reason.  You may have also heard some say they can fire employees for a good cause, bad cause, or no cause at all.  

Let’s play this one out.  Joe’s worked for you during the last six years.  Today you’ve decided to terminate his employment.  There are good reasons to do so, but you’ve elected to exercise your rights under the at-will clause.  

“Joe, we’re letting you go today.  Here is your final paycheck.”

“What?  Why? What’s going on?”

“We live in an at-will state and are not required to give you a reason for termination.”

Joe leaves the office and goes where?  Likely either to the EEOC or to an attorney.  Why? Because Joe wants to know why you fired him.  You may be thinking, “Joe knows why we fired him. It shouldn’t have been a surprise.”  I say, “Thank you for making my point.” If you know why you fired him, then tell him.  

“Joe, as we’ve discussed several times, your performance has been well below what we expect of someone in your role.  We’ve tried to coach you and offer any assistance you might need, but you aren’t doing anything to improve. Based on this, we are terminating your employment effective immediately.”  At this point, you would hand Joe the written documentation illustrating just what you’ve said. 

“I will try to do better.  Please give me another chance.”

“I’m sorry, Joe, we’ve given you chances, and we can’t continue.  Here is your final paycheck, we’ll help you get your things together, and we really do wish you all the best.”

Now, where does Joe go when he leaves?  He might still go to the EEOC or an attorney, but now he knows the reason and is holding a piece of paper that clearly states why you let him go.  That’s a little bit harder of a conversation for Joe now. So hopefully he’s gone home and started looking for a new job. 

At will means employees can leave for no reason, and employers can terminate for no reason.  Terminating for no reason is a story I don’t ever want to tell a mediator or a judge. Also, if you have no reason, why are you terminating them?  

Don’t use the at-will clause as a way to avoid progressive discipline either.  If you’re ready to let someone go because they’ve been a problem for ages, but you’ve never dealt with it.  Saying you’re letting them for under the at-will clause is incredibly risky. Once you get a charge from the EEOC, you’re going to have to tell them the details.  So, if you’re trying to hide the fact you didn’t have a good paper trail but still want to let someone go, this is not your answer.  

If an employee isn’t working out, they deserve to know why.  

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