This blog post is a discussion based on another short video titled “HR FAQs 2022, Do I Need An At-Will Employment language in my file?” As usual, we feel obligated to share information and knowledge that would definitely help you navigate legal issues, particularly as it concerns the labor and employment law. In fact, based on the numerous questions we receive concerning the law on labor and employment, this is one of the training videos in which Vinny commits himself to standardizing and synthesizing key information as part of sharing general knowledge with our unusually motivated® readers. Accordingly, as the video suggests, the video aims to answer the question of whether it is really necessary to have a clause for at-will employment.
That being said, let us boil down to it.
To start with, “at-will employment” is essentially a fancy legal term used in the context of employment and labor law. When it comes to this legal issue, it is crucial to understand that employment is generally considered at-will by both parties, which implies that the employer employs at will, while the employee works for the employer at will as well. Thus, based on a number of factors and issues agreed upon during hiring, either party can “leave” whenever it wants and for whatever sensible reason.
With that in mind, does an employer need to have at-will employment language in file? One critical issue of concern and worry for the employer should be whether the employee handbook creates a contract of employment, which can be either an “implied contract” or an “express contract.” Usually, employers would want to have general information and principles concerning the terms of employment as opposed to giving specificity to each employee hired. In most cases, an employee handbook acts as a rebuttable presumption through which companies may avoid some liability with their employees. This is because an employee handbook is perceived as a presumption serving to protect the employer. For instance, it creates a presumption in the courtroom that, in case an employee sues the employer for harassment, discrimination, or retaliation, the employer could confidently say that, based on the handbook, “we attest to a non-harassment, an anti-discrimination, and a non-retaliation policy.” Still, technically speaking, while it contains the corporate values, rules, codes of conduct, and culture of the organization/company/business, the employee handbook creates a legal presumption for the employer that the working conditions in the workplace reflect and align with what is stated therein.
Thus, an employee handbook does a lot in advancing the employer’s employment policy for the entire workforce and answers a dozen questions concerning what to do and what not to do as part of the employee’s responsibility. Unfortunately, by doing that, the handbook creates a contract, which may be viewed as the employer’s promises to the employee, as opposed to other imperative matters, such as an employee’s 30-day PIP (performance improvement plan) disciplinary action.
Assuming that this is lined up in the employee handbook, an employee may theoretically argue that that is precisely what they agreed to when they got hired and signed the employment handbook. In order to counteract such an argument, the employer needs to include “at-will employment language” in the handbook. For instance, the employer can say that the handbook does not have any expression and does not create any express or implied contract since employment between so and so is considered and should be viewed as at-will at any point in the course of employment.
In short, the employer should make sure to include such an “at-will employment” clause in the employee handbook, whether as a paragraph, a disclaimer, or as part of employee acknowledgment. Again, the clause should clearly specify that the handbook is not a contract whatsoever since employment is at-will and thus, other than for reasons codified under the law, such as discrimination, the employer can terminate the employee whenever appropriate, while the employee may leave whenever they want, depending on the terms of separation with the employer.
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Always rising above the bar,
Isaac T.,
Legal Writer & Author.