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How employers should approach at-will employment

At-will employment means that either employer or employee can end an employment relationship at any time, with or without notice, and with or without explanation.

But employers should beware of using it in the same way in all situations. At-will employment is not a one-size-fits-all solution for employers parting ways with an employee. Employers must comply with all federal, state, and local anti-discrimination laws. And employers firing an employee in a protected case should tread carefully if citing at-will employment as the separating reason.

Michigan, as well as many other states, recognize at-will employment status although some states have exceptions for public policy or implied contract.

What at-will employment does

At-will acknowledges that the employment relationship between employee and employer is voluntary. In other words, at the will of both parties. In lieu of any contract or employment agreement, it defines the employment relationship and either party can choose to end the relationship at any time, for any reason.

What at-will employment doesn’t do

At-will employment does not protect an employer from wrongful discharge claims or unemployment charges and will not suffice as a reason when responding to an EEOC complaint. In fact, failure to provide a discharged employee with a reason for terminating their employment allows them to draw their own conclusions, perhaps one that reflects negatively on the employer or opens the employer up to agency inquiries.

Probationary periods do not offer legal protections

Employers relying on probationary periods as a reason for termination can run into similar obstacles. There are not any legal protections for the employer that uses a “probationary period” as a reason for terminating an employee. In fact, according to the Society of Human Resources Management (SHRM), probationary periods may weaken an employer’s at-will status. Courts have determined that employees that successfully complete a probationary period may have additional job protection. To protect your at-will status as an employer, use an introductory period or training period for employees in transition and address any performance issues promptly.

Recommended solution for documenting employee performance

Stop using a Probationary Period for new or non-performing employees. When terminating an employee, don’t rely on the fact that your company is an at-will in employer. Have documented business or performance reasons when terminating individuals. When terminating an employee for performance, be sure that your concerns have been communicated to the employee and have a witness and/or the employee’s signature acknowledging the conversation(s). Progressive discipline is always the best course of action when terminating for non-performance.

There are always exceptions. Before you separate an employee using at-will employment as a reason, talk to a Human Resources professional at BCN Services for consultation and direction. Contact us anytime.

Sue Kester, HR Manager