At Will Employment
What is At Will Employment?
“At will” employment is a legal doctrine that provides that an employer may terminate an employee for any reason, with or without warning. An employee can’t sue for lost wages due after termination from the job, as long as the termination was not illegal or discriminatory. Termination may not be based on an employee’s gender, race, ethnicity, or religion. But the doctrine goes both ways. An employee can also quit, with or without warning, for any reason or no reason at all.
All 50 states and Washington, D.C. recognize the at will employment doctrine. Montana, however, stands alone applying the doctrine only during an initial six-month probation period for an employee.
At will employment doctrine is subject to some exceptions. And these can vary significantly by state.
Public Policy Exception.
Forty-two states and Washington, D.C. recognize the public policy exception. This exception prevents an employer from terminating an employee if it violates the state’s public policy doctrine or a state or federal statute. For example, retaliation against an employee who reports a violation of a state or federal law.
Implied Contract Exception
Thirty-six states and Washington, D.C. recognize the implied contract exception. When an employee handbook or a higher-ranking employee states or implies that the employment is for a specified time period or that cause is required for termination, an implied contract may arise. If an implied contract is shown, it may prevent the employer from terminating employment without just cause. However, the implied contract is typically difficult to prove, and the burden of proof lies with the terminated employee.
Often high-level employees have contracts that specify a guaranteed term of employment. Collective bargaining agreements with unions may also provide for terms of employment or specific actions that must be taken prior to a termination.
Finally, there are some statutory exceptions that vary by state. Check your state statutes or talk to an attorney in your state.
The Offer Letter
When you make a job offer by phone or email, consider following it up with a formal letter that confirms the offer. Include specific details in the letter. Details might be job title, salary, benefits, paid leave, reporting structure, start date. The letter may include contingencies such as background check, reference check, drug testing. These contingencies enable you to rescind the job offer if any issues arise.
The offer letter is one way to secure at will employment. Assuming you are not hiring an employee under an employment contract for a specific duration or under a union collective bargaining agreement, specifically state in the offer letter that the employment is at will.
Require a signed copy of the letter as acceptance of the offer. This can later operate as conclusive proof that the employee understood there was no guarantee of continued employment for a specific time period.