As I am sure most of you know, the title of this article is taken from Shakespeare’s Hamlet, Act 3, Scene 1: “To be or not to be, that is the question.” You also know that Prince Hamlet was talking about way deeper stuff than whether you should be an at-will employer. But I’m trying to be creative, so we are going to go with it. And sticking with our Shakespearean theme, let’s listen in on a meeting between Prince Hamlet, the HR Director and Claudius, the evil plant manager who wants to fire Gertrude, the 64-year-old supervisor who happens to have a bad knee and is not from Denmark.
Claudius: “Hamlet, time to fire Gertrude.”
Hamlet: “Forsooth noble Claudius, why?”
Claudius: “What do you mean why? She is an at-will employee. I don’t need a why.”
Hamlet: “Noble Claudius, not true, for Gertrude is a member of at least four protected categories.”
Claudius: “Well, then why per chance do we even bother with this at-will stuff . . . forsooth?”
What a play! What a masterpiece! And old Claudius asks a great question. If there are all these exceptions to the “at-will” doctrine and I need a reason to fire someone, why do we still bother with at-will? And is it worth it?
Let’s start with this — no one ever fires someone without a reason. That is silly and costly and makes no sense. We always recommend you have a reason to fire someone, because if you don’t, they will make one up, and that reason will be something like “it was my gender” or “I’m 64,” “I have a bad knee” or “I am not Danish.”
Then, of course, there are the exceptions. But all these exceptions to the at-will doctrine, the ones we all know about, like the Title VII protected categories and the anti-retaliation provisions of most federal statutes, including, for example, Title VII, OSHA and ADEA, and the specific for cause provisions of federal statutes like USERRA, will all still be there whether you are an at-will employer or not.
What you have to deal with if you are a just cause employer (that you don’t if you are an at-will employer) is “wrongful discharge.” You see, if you promise that you will only fire an employee if you have “just cause,” which is roughly the opposite of “at-will,” you may have to spend time, and yes money, proving that you had just cause to fire the employee. That is what a wrongful discharge suit is, and without boring you with the legal details, that kind of suit can still exist if you don’t make sure everyone, including the employees you hire, is an “at-will” employee.
If you are an at-will employer, you don’t have to deal with wrongful discharge and we can concentrate on the exceptions when an employee sues. Being at-will is fairly simple; there are really only three steps:
- Make sure your employment application has decent at-will language in it. It does not have to be complex but it should be prominent, not hidden in a bunch of fine print. And if you want to make doubly sure the employee sees it, have them initial that language when you go over the application with them (or have an acknowledgment on an online application).
- Have an at-will policy in your employee handbook. Here you want to get a bit more complex, but again don’t get carried away. State you are at-will, tell the employee what that means and tell them no one can make any agreement that contradicts the at-will policy. And, reiterate the at-will policy in the acknowledgment to the handbook. Basically, restate the at-will policy here for signature by the employee.
- Finally, if you have any stand-alone agreements with employees like confidentiality agreements or non-compete agreements or intellectual property agreements, make sure you include a provision that says nothing in that agreement is intended to nor does it modify the at-will nature of the employee’s employment.
So, as Hamlet would say: “Take arms against a sea of troubles and oppose them, be at-will and be (somewhat) protected.”
