AT-WILL EMPLOYMENT:” IS THE EMPLOYER’S EDGE SHARP ENOUGH?

Posted: 03/29/2010 in General Information, Member Experts, Uncategorized

Without hesitation, Masud Labor Law Group recommends that employers create and maintain an at-will employment relationship with their employees.  At-will employment is very simply defined as that employment relationship that can be terminated by either the employee or the employer without cause, notice or other justification.  Moreover, Michigan law presumes employees to be employed at-will unless the employer does something affirmative to create an employment relationship other than at-will.  Accordingly, employers should follow the following basic guidelines:

  • Avoid any employment policy that suggests that employees can only be terminated for any particular reason or for “cause.” 
  • Avoid any employment policy that suggests that an employee can expect to be employed for a specific duration.  Employment should be specifically defined as “indefinite.”
  • Avoid any practice that gives employees a reasonable expectation that their employment may be terminated for only specific reasons or for “cause.”
  • Avoid any practice that gives an employee a reasonable expectation that their employment is for a specific duration.

However, employers typically ask:

If I maintain an at-will employment relationship with my employees, why am I always asked to justify the termination of an employee whose performance I simply find unacceptable?

The reason is very simple.  An employer’s decision to terminate or otherwise adversely impact the employment of one of his or her employees can be second guessed by any number of federal and state agencies, the courts or juries.  For example, an employer’s judgment is subject to being second guessed by either the Michigan Department of Civil Rights or the Equal Employment Opportunity Commission where the affected employee who falls within a category protected by state or federal discrimination laws.  An employer’s judgment can also be second guessed by the National Labor Relations Board or the Michigan Employment Relations Commission if the affected employee is or has been engaged in union activity.  Employees can also allege that they are whistleblowers subjecting an employer’s action to scrutiny by the courts and potential jurors.  These are only a few of the statutes that might subject an employer’s decision to scrutiny.  Other statutes include age discrimination statutes, wage and hour statutes, pregnancy discrimination statutes, disability discrimination statutes, the Family and Medical Leave Act, and a host of others. 

In short, before an employer proceeds with termination of an at-will employee, the employer is always encouraged to ask several questions.  The following questions are considered examples and should not be considered an exhaustive list for any particular situation.

  • Is the employee I’m about to terminate protected by any civil rights statute?
  • Has the employee I’m about to terminate tried to raise legal questions before any state, federal or local regulatory or governing agency?
  • Is the affected employee in any way disabled or does the employee fall into an age protected category?
  • Have I said or done anything that would lead this employee to believe that I will terminate him only for good cause or for any specific set of reasons set  forth in my policies?
  • Is the employee on Family or Medical Leave or recently returned from a Family or Medical Leave?
  • Is the employee receiving workers’ compensation benefits or has the employee recently received workers’ compensation benefits?
  • Has the employee engaged in any activity that would be considered “protected under federal or state labor laws?
  • Has the employee signed documents acknowledging his or her “at will” status?
  • Have I thoroughly investigated this matter and allowed the affected employee to explain his or her side of the story?

Employers are always encouraged to review their termination decisions with their employment lawyers to make sure that all the potential answers to these questions are thoroughly explored with someone knowledgeable about how the various laws are applied.  If you require any assistance, please contact the Masud Labor Law Group, 4449 Fashion Square Boulevard, Suite 1, Saginaw, MI, 48603; (989) 792-4499; www.masudlaborlaw.com  

About the Author

Gary D PattersonGary D. Patterson graduated with distinction from Thomas M. Cooley Law School where his legal studies focused on labor and employment law. While in law school, he earned an American Jurisprudence Book Award in Research and Advocacy.

Gary has considerable practical experience in labor arbitration, grievance resolution and collective bargaining, as well as workers’ compensation disputes. He has also distinguished himself in the labor and employment law community as a speaker and instructor. Gary joined Masud Labor Law Group in 1991. His extensive experience and training are utilized to assist clients in labor and employment law matters and workers’ compensation disputes. He is admitted to practice in all federal and state courts for the State of Michigan, including the federal Sixth Circuit Court of Appeals.

This article is published by the Masud Labor Law Group, and is intended as general information only.  This article is not intended to provide legal advice or opinion, as such advice may only be given when related to specific fact situations.  Questions or comments concerning this article should be directed to the Masud Labor Law Group, 4449 Fashion Square Blvd., Ste. 1, Saginaw, Michigan, 48603, (989) 792-4499.  E-Mail:  mps@mpslaborlawyers.com.  ©Masud Labor Law Group 2010.  All rights reserved.  Reproduction of this article in whole or in part, without express permission from the Masud Labor Law Group is prohibited.

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