The At-Will Doctrine From A Common Sense Perspective

Most employers consider their employees to be employed at an “at-will” capacity. The concept of an at-will employment is that the employer is free to terminate an employee at any time, for any reason, and with or without cause for termination. Similarly, the employee is free to leave at any time, for any reason and with or without notice. The limitations to this right to terminate typically arise from what lawyers refer to as “protected categories”. This prohibits termination based on age, gender, race, disability status, etc.

The “at-will” concept is simple but its application can prove to be problematic. By that I mean employers tend to implement policies or act in a manner that creates confusion or, perhaps more accurately stated, sends mixed messages to their workforce. Sometimes, it is just the way things are said in a handbook that leads an employee to conclude the employment relationship has morphed into something more than “at will.” Sometimes it is a policy or policies that create the mixed message. One of the primary culprits is what is known as the “probationary period” or the “introductory period”. Essentially, this is the time period, following hire, during which the employee is told they are being evaluated and can be terminated for any reason. From the perspective of the employee, once they’ve completed the introductory period, they believe that the only reason to terminate is “for cause.” While that is not true, you, as an employer, have created a mistaken impression among the members of your team.

My experience with probationary or introductory periods is that they are unnecessary. Any employee can keep their nose clean for 60, 90 or even 180 days. Once the probationary period has expired and the employee has let down their guard, are you getting the employee you thought you hired? Employee performance and their “fit” within your organization are subjects that should be evaluated throughout their tenure, not just during an artificial introductory period. If the person was hired as an at-will employee, they are at-will during your introductory period and afterward. I get that “legally” nothing changed, but remember we are talking common sense here. “Legally” nothing changed but what does your team think? Do they have the mistaken perception that their employment status somehow changed from at will to terminable for cause? I am not so much concerned with the employee that is terminated based on their at-will status as I am with the impact that termination may have on how you and your company are perceived by your workforce.

One of your most valuable commodities is the trust given to you by your employees. Don’t let a misunderstanding about a policy damage that trust.