Employer: At Will Employment FAQ

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  • What does "at will" employment mean?

  • Do I need to tell someone why he or she is being fired?

  • What is a constructive discharge ?

  • What kind of employment rights does a probationary employee have during his or her probationary period?

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

  • Does the employee have the right to representation by a lawyer?

  • What can an employer do about challenging unemployment benefits ?

    Q: What does "at will" employment mean?

    A: An employee is employed at the will of the employer for as little or as long as the private employer wishes, and in whatever lawful capacity the employer requires. The employee may choose to work at the employee's will for the length of time he or she desires. An employer need not provide any reason for terminating an "at will" employee, so long as the termination isn't unlawful or discriminatory (based on age, sex, national origin, disability).

    Reasons for terminating an at-will employee may include, but aren't limited to:

    • Merger
    • Workforce reduction
    • Change in company direction and business focus
    • Poor company performance

    One of the exceptions to at-will employment is called "promissory estoppel." To show promissory estoppel, an employee must show

    • The employer made a clear and unambiguous promise of employment for a specific period of time
    • The employee relied on the promise
    • The employee's reliance was reasonable and foreseeable
    • The employee was injured as a result

    There is also an implied covenant of good faith for every contract, even a contract for "at will" employment.

    There is also what's called "public policy" against firing a worker for:

    • Refusing to perform an act that state law prohibits
    • Reporting a violation of the law
    • Engaging in acts that public policy encourages (for example, not allowing leave for National Guard activities)
    • Exercising a statutory right (for example, firing an injured worker who files a claim under the state worker's compensation law)

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    Q: Do I need to tell someone why he or she is being fired?

    A: It depends on state law. From a practical standpoint, it may not hurt to give a reason even in an "at will" situation, as an employee may look at things more suspiciously if no reason is given.

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    Q: What is "constructive discharge"?

    A: If an employee resigns because an employer has created intolerable working conditions and refused to address the issues, the employee may be able to sue for constructive discharge and apply for unemployment benefits.

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    Q: What kind of employment rights does a probationary employee have during his or her probationary period?

    A: Not many. The very term indicates that the employee must successfully pass the trial, or probationary, period of employment to earn the rights held by non-probationary employees.

    Probationary employees can normally be discharged at any time within the probationary period with no right to appeal the termination. Normally there is no entitlement to continued employment. The probationary employee would have none of the due process rights given to permanent employees with an entitlement to continued employment, even in the civil service arena.

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

    A: Investigatory interviews can be perfectly legitimate and can include 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

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    Q: Does the employee have the right to representation by a lawyer?

    A: The United States Supreme Court has held that an employee's request for representation during an investigatory interview which the employee reasonably believes may result in discipline is considered a protected, concerted activity under Section 7 of the National Labor Relations Act. The right to representation, frequently referred to as "Weingarten rights," covers all employees with a few exceptions. Representation can be either through a union representative (if applicable) or a coworker.

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    Q: What can an employer do about challenging unemployment benefits?

    A: Generally, an employee is eligible for unemployment compensation if he or she is dismissed for any reason other than "for cause." If an employee leaves voluntarily, he or she is not eligible for unemployment benefits unless the employee leaves for "good cause," which is commonly known as "constructive discharge."

    Unemployment compensation is determined at the state level through a combination of an employee's last 12 months pay and the average weekly wage earned by all workers statewide. Benefits generally last 26 weeks and are available if a terminated employee is actively looking for other employment.

    An employer does not have the power to deny unemployment benefits, only to protest them. The state unemployment office makes the final decision. Both the employer and the employee have a right of appeal.

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