TYSONS OFFICE
Terminations: Wisely Managing Troublesome Employees
What is “at will” employment, and how does it work?
How do I set up an “at-will” employment relationship?
This starts before even hiring. On the employment application form, there should be a prominent disclaimer stating that employees are free to resign at any time and are subject to discharge at any time, with or without notice.
This should also include that the employment relationship is not subject to provisions you don’t want to be a factor in the employment contract.
Can I inadvertently make any contractual obligations that limit my freedom to terminate employment at will?
Yes. An at will employment relationship may be altered inadvertently by certain statements (oral or written) of an employer that may be construed as giving rise to an implied employment contract which limits the employer’s right to terminate the relationship.
To prevent this, avoid any statement to prospective employees that might be understood to imply that the employment relationship will be for a certain time or conditioned on performance. Written employment agreements help.
A written agreement that clearly expresses the understanding of the parties that the relationship is at will, should make it difficult for an employee to later argue that an implied contract was created limiting your right to terminate at will.
What if I only want to hire an employee for a certain amount of time?
What should I consider when thinking of firing an employee?
It’s important to consider three questions before firing an employee:
1) Will the employee have any basis for claiming that his or her termination violated federal or state laws limiting the employer’s right to terminate at will?
2) Will the employee have any basis for alleging that a contract has been formed, limiting the employer’s right to terminate at will?
3) Will the employee have a reasonable basis for perceiving that she or he has been treated unfairly, especially in light of any expectations that may have been created? If the answers raise any concerns, consult legal counsel.
What general guidelines should I follow during the termination process?
Keep all aspects of the process appropriately confidential. If the problem is due to unsatisfactory performance, ensure that the employee is given clear notice of the problem and how it should be corrected. Corroborate the supervisor’s evaluation with another manager.
Consult competent counsel to review the employee’s personnel record before finalizing the termination decision. Never make any deductions from the employee’s final paycheck without the employee’s written consent, unless approved by legal counsel. This list is not exhaustive.