How to Establish a Solid Foundation for Terminating “At-Will” Employees (1 of 2)

April 5th, 2016

How to Establish a Solid Foundation for Terminating “At-Will” Employees (1 of 2)

By:  Nicole D. Lindsey and Heather Rooney McBride


Most states operate under the “at-will” doctrine of employment, which gives both employers and employees the right to terminate a working relationship at any time and for any reason – or for no reason at all.  However, often, the at-will doctrine imbues supervisors with a false sense of security that they are safe to terminate without giving a reason, which is fine until a terminated employee sues, and the manager is asked why the person was terminated.  If the manager cannot provide a reason, the employee’s attorney is free to surmise the reason based on the employee’s point of view and in the employee’s favor.


How can an employer avoid this situation?:  Clear expectations and documentation.  Clear expectations come in the form of an employee handbook or code of conduct and communication with employees.  Employers now routinely use employee handbooks to outline their expectations for employees, which may include policies on attendance, behavior standards, and a progressive discipline process.  Communication with employees by managers on a day-to-day basis is also important to ensure that employees are made aware of unacceptable behavior so that employees can take steps to improve behavior and performance.


Documentation is key.  Solid documentation when embarking upon the process of terminating an employee provides the employer with a defense should the terminated employee choose to sue.  Documentation is the written record of how a termination decision is made and provides a chronology of what the employee did, how the manager/employer responded, and any steps taken to correct the situation.  In the best case scenario, documentation is compiled on a contemporaneous basis long before the situation ever comes to termination.  Appropriate documentation provides a solid foundation for defense of a lawsuit should the company be sued, provided the employee was not terminated for an inappropriate reason such as but not limited to discrimination, retaliation, refusing to take a polygraph test, alien status, or complaining about OSHA/safety violations.  An employer is best positioned to obtain a favorable outcome if it is able to provide written proof that the employer engaged in ongoing communications about performance or behavior problems and set clear expectations for the employee.