How the ‘at-will’ myth can leave employers exposed

The vast majority of states operate under the “at-will” doctrine of employment, which gives both employers and employees the right to terminate a working relationship at any time, for any reason – or for no reason at all.

But misunderstandings about the at-will doctrine often gives supervisors a false sense of security: “Hey, we’re operating on an at-will basis here. If I want to fire ’em, I fire ’em. I don’t need a reason.”

That’s only true up to the point that an employee sues for discrimination or retaliation, or any number of other possible violations of federal, state and even local laws.

“I didn’t need a reason”

When an employee’s attorney asks the manager why that person was dismissed, the manager answers, “I didn’t have a reason. I didn’t need one. He was an at-will employee, so I was within my rights to fire him.”

What happens next is a classic case of filling in the blanks … to suit an agenda.

Since the manager left the reason for the firing essentially “blank,” the lawyer simply begins filling in that blank with past interactions between the employee and the manager, portrayed solely from the employee’s point of view and tilted in the employee’s favor.

And because the manager has no stated reasons for the firing, or at least no documentation for those reasons, it’s very hard to counter an employee’s allegation that bias led to the firing.

Docs are critical when lawyers get involved

It’s the plaintiff’s attorney’s job to create the suspicion of discrimination in the minds of jurors.

In the courtroom, years after the encounters have occurred, that’s not hard for a good lawyer to do if the manager has no documents supporting his or her actions.

And that’s why employers are well-advised – even in at-will situations – to not only establish good reasons for firing an employee, but to be sure to create and preserve the critical documentation (including your employee handbook) that backs up the decision.

Tim McElgunn
Tim, a member of the HRMorning staff, is a veteran writer and editor. His background includes producing and managing publications for Bloomberg, Frost & Sullivan, Gartner Group and McGraw-Hill.