You’re FIRED! The ambiguity of the Employment-At-Will doctrine

On a number of occasions in the past I’ve been asked to fire employees for reasons such as “they are not a cultural fit”, “they are not performing well” and, once, when their boss simply didn’t like the color of their shirts.

“Fire them”, I was told on each occasion, “it’s employment-at-will, right?” 

Experienced HR professionals will agree that the answer is not that straightforward, evidenced by the fact that the EEOC alone has received close to one million discrimination claims in the past decade, with charges filed with state or local Fair Employment Practices Agencies adding to that number.

This lack of familiarity with the employment-at-will doctrine means that employers in the US are prone to make uninformed decisions, which can lead to thousands or even millions of dollars in wrongful termination lawsuits.

Another question I’ve been asked is “the employee is under 90 days and not working out – can I let them go?”  The answer may be a bit clearer in this situation, but if the employee is not performing to expectation, always be cautious and document reasons for termination.

Whatever the reason for wanting to terminate an individual’s employment, you should consider the following three questions:

1. Is it Legal? YES, it is legal to terminate at will, meaning for any reason, at any time, unless the reason you are terminating is, itself, illegal.

Under EEOC, Applicants, employees, and former employees are protected from employment discrimination based on race, color, religion, sex (including pregnancy, sexual orientation, or gender identity), national origin, age (40 or older), disability, and genetic information (including family medical history). They are also protected from retaliation (punishment) for filing a charge or complaint of discrimination, participating in a discrimination investigation or lawsuit, or opposing discrimination, e.g., threatening to file a charge or complaint of discrimination.

Also consider checking your state/local specific laws protecting employees, e.g., the State Montana employment-at-will only applies during the probationary period’s first six months. Many other states allow public policy exceptions, covenants of good faith, and implied employment contract exceptions.

2. What are the risks of terminating this individual? The employer may risk a wrongful termination lawsuit if it does not evaluate it correctly. Poor performance and behaviors should be well documented to prove the legality of the termination.

3. Am I compliant? Ensure the company has defined employment policies in place, such as a well-written handbook aligned with the company’s practices. Policies should apply to all similarly situated employees, e.g., if an employee is terminated due to attendance: (a) the employer should have a well-drafted attendance policy, and (b) that policy is applied the same way to all employees in the same situation.

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So, when considering a termination either because an individual is not a cultural fit, is not performing well, or you simply didn’t like the color of their shirt, before saying, “you’re FIRED!” always consider legality, risks, and compliance as this will lower the probability of a wrongful termination claim.

Better still, speak to an HR Professional with a sound knowledge of employment law and how to apply it. It’s a conversation that could save you a great deal of time and money!

Copyright OrgShakers: The global HR consultancy for workplace transformation founded by David Fairhurst in 2020

Copyright OrgShakers: The global HR consultancy for workplace transformation founded by David Fairhurst in 2020