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You're Fired: Why Employment Practices Can Trump At-Will Employment


Phil Nelson's February 28 blog post discussed how employers in Oregon are often surprised to learn that the employment-at-will doctrine can easily be defeated by the employer's own actions or statements. He properly reminded us that sloppily drafted employment handbooks are a common culprit, and argued that all Oregon employers should include a provision clearly stating that the handbook itself is not a contract and nothing contained therein shall alter or affect the at-will nature of the employment relationship.

I doubt he intended to imply, however, that the employment-at-will doctrine is a shining sword that should be vigilantly and firmly wielded by all employers. After all, ultimately what is the practical application of standing firm on employment-at-will?

Yes, the inclusion of words designed to retain at-will employment in applications, handbooks, and offer letters is important, and problems can and will arise when such verbiage is overlooked. However, their mere inclusion in employment documents cannot be solely relied upon, either. Why? Because what matters most are your actual employment practices.

Are you, as an employer, going to let your employees know loud and clear that you will terminate them any time you want, at the drop of a hat, Phil Nelson's February 28 blog post discussed how employers in Oregon are often surprised to learn that the employment-at-will doctrine can easily be defeated by the employer's own actions or statements. He properly reminded us that sloppily drafted employment handbooks are a common culprit, and argued that all Oregon employers should include a provision clearly stating that the handbook itself is not a contract and nothing contained therein shall alter or affect the at-will nature of the employment relationship. I doubt he intended to imply, however, that the employment-at-will doctrine is a shining sword that should be vigilantly and firmly wielded by all employers. After all, ultimately what is the practical application of standing firm on employment-at-will? Yes, the inclusion of words designed to retain at-will employment in applications, handbooks, and offer letters is important, and problems can and will arise when such verbiage is overlooked. However, their mere inclusion in employment documents cannot be solely relied upon, either. Why? Because what matters most are your actual employment practices. Are you, as an employer, going to let your employees know loud and clear that you will terminate them any time you want, at the drop of a hat, with or without cause? And are you then going to follow with that practice? For practical purposes, the answer is probably not, at least not if you want your business to retain any kind of talent. So, what are you going to do? You're going to have a good reason for termination, and if a top employee begins to have problems you are going to work with him or her -- and likely give notice and sufficient time to try to work out any issues before a firing. You will also probably do the same with most other employees, because the hiring and training processes carry with them significant costs and it's not something you want to repeat often. And, just like that, you have begun a practice -- one that should be applied fairly and consistently across your employment base. Sometimes lawsuits filed by former employees are unreasonable. Oftentimes they can be motivated by a feeling of having been treated differently or unfairly. If you have deviated from your standard practice in terminating an employee, and there was no valid reason for the termination, pulling out and relying upon the employment-at-will doctrine will not help you. The questions at this point will tend toward: Why did you single this person out? Why did you treat them differently by firing them without notice, or without good reason? If you don't have a sound explanation, there will be a logical assumption that you terminated them for reasons other than what you are stating. Or, in other words, you were discriminating. Whether at hearings, oral arguments, or in settlement conferences, employers should be able to point to appropriate wording in their documentation for their own protection. However, it is not just text an employer will have to rely on, but rather their day-to-day employment practices that will ultimately be at issue with or without cause? And are you then going to follow with that practice? For practical purposes, the answer is probably not, at least not if you want your business to retain any kind of talent.

So, what are you going to do? You're going to have a good reason for termination, and if a top employee begins to have problems you are going to work with him or her -- and likely give notice and sufficient time to try to work out any issues before a firing. You will also probably do the same with most other employees, because the hiring and training processes carry with them significant costs and it's not something you want to repeat often. And, just like that, you have begun a practice -- one that should be applied fairly and consistently across your employment base.

Sometimes lawsuits filed by former employees are unreasonable. Oftentimes they can be motivated by a feeling of having been treated differently or unfairly. If you have deviated from your standard practice in terminating an employee, and there was no valid reason for the termination, pulling out and relying upon the employment-at-will doctrine will not help you. The questions at this point will tend toward: Why did you single this person out? Why did you treat them differently by firing them without notice, or without good reason? If you don't have a sound explanation, there will be a logical assumption that you terminated them for reasons other than what you are stating. Or, in other words, you were discriminating.

Whether at hearings, oral arguments, or in settlement conferences, employers should be able to point to appropriate wording in their documentation for their own protection. However, it is not just text an employer will have to rely on, but rather their day-to-day employment practices that will ultimately be at issue.

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