Employer: At Will Employment FAQs

What does “at will” employment mean?

A: It means you can keep your employees for however long you want. This means you can fire them for any reason or for no reason at all, so long as it’s not an unlawful or discriminatory reason, such as because of her age, sex, national origin, or disability. Similarly, the employee has the right to quit at any time, with or without notice.

What is constructive discharge?

A: It’s when an employee resigns or quits because an employer has created intolerable working conditions, or basically makes it impossible for the employee to continue to work for the employee. In these cases, an employee may be able to sue for constructive discharge and may even be eligible for unemployment benefits even though she left voluntarily.

Does an employer need to tell employees why they are being fired?

A: As a general rule, no, you don’t have to give employees a reason why they’re being fired. From a practical standpoint, however, you may want to give a reason even in an “at will” situation so the employee understands why there was a termination and what to expect from company for a reference when the employee applies for a job.

What can an employer do about challenging unemployment benefits?

A: As a general rule, an employee is eligible for unemployment compensation if she’s dismissed for any reason other than “for cause.” If an employee leaves voluntarily, the employee is not eligible for unemployment benefits unless she leaves for “good cause”. This is commonly known as “constructive discharge” and can result from various types of misconduct or omissions to act by the employer. The employer doesn’t have the power to deny unemployment benefits, only to protest or challenge an employee’s eligibility for them. The state unemployment office makes the final decision on benefits. Both the employer and the employee have a right to appeal or challenge the agency’s decision if they don’t agree with it, often resulting in a series of administrative hearings. The final appeal of an Employee or Employer is to the Common Please Court.

Is an employee handbook an “employment contract?”

A: As a general rule, no. Employers typically take great care to make sure that employee handbooks do not constitute employment contracts. Employment contracts generally guarantee an employee’s right to work for an employer for a certain period of time unless the employee gives the employer a good reason to fire her, such as stealing from the company or continually not showing up for work. Employee handbooks explain the employer’s various rules and policies and any benefits an employee may be entitled to but generally do not guarantee employment. However, a handbook may be considered a contract under certain circumstances, such as when it contains language that may give an employee a reasonable belief that she has guaranteed employment. For this reason, employee handbooks must be written carefully, so that the rights and policies of the company are presented properly and unintended consequences avoided.

Does an employee have the right to representation by a lawyer during an investigatory interview?

A: Generally, an employee has a right to representation at investigatory interviews. The right to representation, often called “Weingarten rights,” covers all employees with a few exceptions. An investigatory interview is when a supervisor questions an employee about something that may lead to disciplinary action against the employee, such as a suspension or even termination. Stealing from the business or not following company policies are good examples.

An employee’s right to request representation arises when the employee reasonably believes discipline may result from what the employee may say during the employer’s interview. The employer isn’t required to tell employees about their Weingarten rights; it’s up to employees to know their rights and request representation.

Representation can be through a union representative, a coworker, or a lawyer.

What rights does an employer have to investigate something an employee may have done?

A: Employers have the right to conduct investigatory interviews on a wide variety of topics, such as:

  • Theft
  • Accidents
  • Damage to an employer’s property
  • Violation of safety rules
  • Absenteeism
  • Falsification of timecards and records
  • Poor work performance
  • Compliance/noncompliance with an employer’s policies and procedures