• David Manes

How can an employer preserve the right to fire at will?

An employer can take several steps in a written employment contract to preserve the right fire at will. The right to fire at will means that an employer can fire an employee without a good business reason for doing so. However, why would an employer want to fire someone without a good business reason?

Why preserve the right to fire at will?

An employer who fires an employee without a good business reason, for example firing someone for wearing a style of clothes that the employer dislikes, risks damaging the morale of other employees and hurting the employer’s own reputation. The truth is that most employers would not fire employees without a good business reason, but they may still want to hire their employees at will. The reason for this lies within the nature of the legal system. Anytime an employer fires an employee there is a risk of a potential lawsuit. Even if the employer had a good business reason, the employee and his lawyer may be able to argue otherwise and before a judge or a jury anything can happen. But if an employer has an at will contract and a good business reason, the odds are in her favor of winning a lawsuit. Thus, an at will employment contract can allow the employer to protect himself from potential lawsuits.

How to preserve the right to fire at will

In order to preserve the right to fire at will an employer should do the following in the employment contract:

Expressly state that the employment is at will

The intent to create an at will contract must be explicit and clear.

Exclude any language restricting the right to fire

If there is restricting language in the contract it may be interpreted as not being an at will agreement.  Avoid the following:

  1. Language that states how long the employment will last

  2. Guarantees of continued employment

  3. Any steps the employer must follow before firing

  4. Any language whatsoever limiting the right to fire

Have the employee and employer sign the contract

Sometimes employers have handbooks stating that all employment is at will, but if the employee has not read the handbook, the at will status may not hold up. In order to guarantee that the at will status will hold up, ensure that your employee has read and signed the employment contract and has received copies of it for herself.

Conclusion

The goal of preserving the right fire at will is generally not so an employer can frivolously fire his employees. It is to protect the employer from lawsuits. Keep in mind however, that even with a rock solid at will provision in the contract, there are still impermissible reasons for firing an employer. Therefore, in order to ensure that your at will contract is done right and you have a valid legal reason for firing, consult with a local attorney who can provide you with specific details concerning your locality.[1]


 

[1] Amy DelPo & Lisa Guerin, Dealing with Problem Employees: A Legal Guide 36-40 (Janet Portman ed., Nolo 4th ed. 2007).

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