Employer: At Will Employment FAQs


Q: Does an employer need to tell employees why they're being fired?

  • A: It depends on the laws in your state, but 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. That's because an employee may look at things more suspiciously if no reason is given and he may be more willing to file a lawsuit against you.


Q: 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 disciplinary action against the employee, such as a suspension or even termination. Stealing from the business or not following company policies are good examples.

    If an employee has reasonably believes discipline may result from what she says during the interview, she has the right to request representation. Management isn't required to tell employees about their Weingarten rights; it's up to employees to know their rights and request representation.

    Lawyers usually aren't involved, either. Representation can be either through a union representative, if your employees are part of a union, or a coworker.


Q: Is an employee handbook an "employment contract?"

  • A: As a general rule, no. employee handbooks are not employment contracts, which 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. Rather, employee handbooks explain the employer's various rules and policies and any benefits an employee may be entitled to.

    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, your handbook must be written carefully, and if possible, ask an attorney for help.


Q: 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, she's not eligible for unemployment benefits unless she leaves for "good cause." This is commonly known as "constructive discharge."

    An 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, however.


Q: 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.

    Lawful, nondiscriminatory reasons for terminating an at-will employee include:

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

    "At-will" employment also means your employees can leave or quit at any time and for any reason, too.


Q: 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.


Q: What kind of employment rights do probationary employees have during their 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 and privileges enjoyed by your non-probationary employees.

    Probationary employees can normally be discharged at any time within the probationary period with no right to appeal or "fight" the termination. Normally there's right or "entitlement" to continued employment, even in the civil service arena.


Q: 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



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