Labor and Employment

Discipline Warnings in Employment Contracts

There is always a contract between an employee and employer, even when an employee doesn't have anything in writing. The agreement of the employee to work for his or her employer and the employer's agreement to pay the employee for that work forms a contract. Generally, you and your employer can agree to whatever terms you wish to be in the contract, but you cannot agree to a contractual term which gives you less rights than you have under law.

At-Will Employment

Most workers in the United States are considered "at will" employees, meaning they or their employer can end the employment relationship at any time, without giving notice or a reason. The "at-will doctrine" is a rule of contract law, which is state law. Because this is a contract rule, the employer and employee are free to change it by agreement. But if their agreement is silent on the question, then the employee can be discharged without warning, without a hearing and without a reason. Employers who want to be certain they have only at-will employment must tell their employees at every point that nothing in the employment manual or rules creates a binding contract and stating over and over that employment is at-will and the employee can be fired for a good, bad or no reason.

Just-Cause Employment

An employer's policy statement, which may be located in an employment manual, might permit employee discharge only for "just cause." This provision would negate the ability of the employer to discharge an employee "at will" even if state law permitted such action. Just cause is a burden of proof or standard that an employer must meet to justify discipline or discharge. Just cause usually refers to a violation of a company policy or rule. If your job classification is covered by a union-employer contract (collective bargaining agreement), that contract probably contains a just cause provision.

Neither the adoption of systematic procedures for dealing with employees nor the creation of disciplinary guidelines transforms an at-will relationship into one prohibiting discharge except for just-cause. To determine whether you can only be fired for just cause, a court will consider such factors as the following:

  • The length of your employment
  • Commendations and promotions
  • Job performance evaluations
  • Any assurances of continued employment
  • Your employer's employee handbooks and policies

Discipline Procedures

A written employment contract will not always contain references to discipline procedures. These kinds of issues will usually be in an employee handbook or in some other form of document, and it is the employee's responsibility to find out what the company policy is on these matters. The disciplinary procedure should include the rules, what performance and behavior might lead to disciplinary action and what action an employer might take.

Absent an employer discipline policy, the law in most states permits employers to discipline (such as suspend or demote) or fire their workers without needing or providing a reason. However, there are exceptions to the rule. For example, your employer generally cannot discipline or fire you because of your age, race or certain other personal characteristics. Such actions would be considered illegal discrimination. And, in most instances, you cannot be fired or disciplined for reporting or complaining to law enforcement, a government agency or your own employer about your employer's illegal activities or safety violations. Nor can you be retaliated against for missing work to serve as a juror. Such terminations would be considered violations of public policy.

Breach of Contract

If disciplinary and grievance procedures are included in the employment contract, handbook or another company document, the company must follow those procedures or it will be in breach of the contract.

Questions for Your Attorney

If you are facing disciplinary action and you aren't sure what to do, you may want to consult an employment law attorney for advice and assistance.

You may want to ask your attorney the following questions:

  • How much experience do you have with employer breach of employment contract cases?
  • Do you have references that I can contact, preferably breach of employment contract case clients?
  • I think that my employment contract was breached because my employer did not follow company discipline procedures when I was terminated. Do I have grounds for a lawsuit?
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