Should you advertise that you are employment at will?
While I was attending a school board meeting, a
superintendent differentiated his staff from the unionized school staff as
employment-at-will. Employment at will
means that you can terminate an employee at any time for any reason. He was actually wrong about his status and
that of his staff. He has a
contract. If his employer, the school
board, decides to dismiss him at any time, then it has violated the
contract. I’ve seen this time and time
again in local government. Local
governments are surprised when they have to pay a town manager when they’ve
violated the contract they sign. Second, public sector employees have
constitutional due process right to their job.
In effect that means that the public employer has to provide some sort
of grievance procedure, an appeal procedure of some sort.
It’s true that the remainder of employers are employers-at-will
with the caveat of those with employees who have a union contract or individual
contract. Most courts have upheld this
common law principle with very few exceptions, even whistleblowers lack
protection according to NY courts. This
is good news for the nonprofit (or private sector employer) that wants to be
free of interventions. Do you have a
statement to this fact on, say, your application, in an employee handbook, or
letter of a job offering? Do you make
new employees sign a statement that the offer letter or employee handbook does
not constitute a contract? If so, then
you are highlighting your right of employment at will. Now take a look at your policies? Do they
conflict with this idea? Do you actually
want to be known as an employer-at-will?
Do you have
- An individual or union contract with any employees
- Grievance procedure
- EEO policy (you can’t fire a person based upon Sex, National Origin, Race, Religion, Color, Disability, Age, and in some states Sexual Orientation)
- An introductory period or probationary period
- An evaluation process, a promotion process based upon favorable evaluations
- A disciplinary process
- An exit interview process
All these policies are the types of policies your lawyer on
your board would recommend you have, but they send a decidedly different
message from prominently stating your right to be an employment-at-will.
As you review your policies, consider what you are trying to
do. Is employment-at-will the policy you
most want to highlight. If so, then you
might want to eliminate some of the policies highlighted above. If not, then you might highlight your
mission, your good reputation as an employer, your family friendly policies,
great benefits, or satisfied employees.
No matter what you decide, your employees who are let go
without cause or documentation are eligible for unemployment. Firing for no apparent reason will most
certainly cause you to pay unemployment no matter what state you are in and no
matter whether you say you are employment-at-will or not.
