Human Resources 11: Employment-at-Will Issues in Your Business

This continues our series on human resources issues that affect your business. We recognize the contribution of Doctor Lori Wadsworth for the content of this series. We urge you to consult a legal professional before taking any action.

Some laws governing employment involves the nature of the contract between employers and employees. Unless you prepare a written contract or verbally imply a contract during the selection and negotiation phase of the employment process, your state laws may create a contract.

Pre-Employment-at-Will Rules

Some legal rules protected employees from harsh business owners. Protections outlined a disciplinary process of verbal and written warnings. It required business owners to establish a paper trail that documented reasons for termination.

Many times the rules protected employees from unjustified termination. Other times it prevented business owners from terminating employees that performed poorly or created problems in the workplace.

Employment-at-Will Law

Employment-at-will began with writings of Horace G. Wood in1877. He erroneously claimed that states had already established the at-will rule. Based on his writings several states implemented at-will statutes and decisions. To this day, you can find conflicting opinions both defending and criticizing the principle.

The American Journal of Legal History says “In almost every jurisdiction in the United States an employer can discharge an employee without notice and without cause unless the duration of the employment relation is specified in an employment contract. The employment at will rule has come under attack recently, but the rule is still generally applied to employees at all levels of work.”

Exceptions to Employment-at-Will

Some exceptions exist:

• Employees represented by trade unions
• Civil servants
• Members of classes historically subjected to discrimination (CRA of 1964, ADEA, ADA)
• Public Policy (Except in AL, DC, FL, GA, LO, MA, NE, NY, RI)
• Implied contract (Except in DE, FL, GA, IN, LO, MS, MO, MN, NC, PA, RI, TX, VA)
• Implied covenant of good faith (Except in AL, AS, AR, CA, DA, ID, MS, MN, NV, UT, WY)
• Statutory exceptions (FSLA, NLRA, ERISA, CCPA, ELCRA, MCLA, MWPA,

Saturday we will explore discrimination legal issues that could get your business in trouble