Being an at-will employee means that an employer can terminate employment at any time, for any cause, with or without notice. Many people are shocked to find out that they are an at-will employee, whether from an employee handbook or employment contract. Here are some frequently asked questions about at-will employment.
1. Question: What Does At-Will Employment Mean?
At-will employments means you can retain employees for as long or as short as you want, including terminating them for any or no reason at all, as long as it is not a discriminatory or an unlawful reason, such as a disability, national origin, sex, or age. Lawful, nondiscriminatory reasons for terminating an at-will employee include the following:
- Workforce reduction
- Poor company performance
- Merger with another company or business
- Change in company direction and business focus
At-will employment also means that your employees can quit or leave at any time and for any reason.
2. Question: Does an Employer Have to Tell an Employee Why They Are Being Terminated?
It depends on the laws in each state, but as a general rule, employers do not have to give employees a reason for the termination. However, from a practical standpoint, you may want to provide a reason because employees may view the termination more suspiciously if no reason is given, and they may be more apt to file a lawsuit against you.
3. Question: Is an Employee Handbook Considered a Contract?
As a general rule, employee handbooks are not considered employment contracts. They typically guarantee an employee’s right to work for an employer for a certain period unless the employee gives the employer a good reason for terminating them. Instead, employee handbooks explain the employer’s various rules and policies and any benefits to which an employee may be entitled. However, a handbook may be considered a contract under certain circumstances, including if it contains language that may give an employee a reasonable belief of guaranteed employment.
4. Question: What Rights Do Employers Have to Investigate an At-Will Employee?
Employers have the power to conduct investigatory discussions on a comprehensive variety of areas:
- Violation of safety rules
- Poor work performance
- Damage to an employer’s property
- Falsification of time cards and records
- Compliance or noncompliance with an employer’s procedures and policies
5. Question: What Is an At-Will Agreement?
To preserve the power to terminate at will, many employers ask job applicants and new employees to approve a written statement acknowledging they are, or will be, hired and employed at will. The statement may be in an offer letter, contract, employee handbook, or application that the employer asks employees to sign and return.
6. Question: What Happens If a Potential Employee Refuses to Sign an At-Will Agreement?
Theoretically, new employees do not have to sign an at-will agreement. However, the employer can terminate or decline to hire them if they do not sign the agreement. Just because they sign it does not mean that the employer will fire them on an impulse. The best employers recognize that doing so would be a waste of resources, and that terminating employees without cause serves little purpose.
7. Question: Can I Fire an At-Will Employee on FMLA Leave?
An employer may not terminate an employee who is on approved FMLA leave as long as the employee does not exceed 12 weeks of FMLA allowance annually. When employees return from FMLA leave, the employer must employ them in their former job or one that is equal. If they do exceed 12 weeks of FMLA, even by just one day, they risk termination for excessive absences. If the employee is terminated after returning from FMLA leave, the employer must be able to prove that the employee would have been fired even if they had not taken medical leave.
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