Employment at Will and Probationary Periods

Article from the ESR Newsletter and Legal Update

A critical issue for employers is the nature of the employee-employer relationship. Employers typically hire on an "at will" basis, meaning there is no employment contract and either side can terminate the relationship. Of course, nothing is that simple. Employers are normally advised to be very clear in all stages of the recruiting, interviewing, and hiring procedures that no promises or contracts are made, either expressed or implied, that modify the at-will arrangement. Again, nothing is that smooth. An applicant may argue that, by certain employer's actions or deeds, there is an implied promise of future employment that can only be terminated "for cause" as opposed to "at will." Examples of instances where an employee may argue they are no longer "at will" are listed below.

�Language in an interview that says "if a person does well, the company will take care of them," or other similar promise of special treatment on the part of the employer.

�Language in the employee manual that creates a "probationary period." The implication is that if a person passes the probationary period, they have vested or obtained a more secure status and there must be "good cause" to terminate rather than a right to terminate "at will."

�Employee manual language that sets out a series of progressive disciplinary steps where an employee has a chance to improve performance. The implication is if they meet the standards, then the person is no longer "at will." Employers could add language that restates that nothing in the progressive discipline system modifies the at-will nature of employment, but it still can create issues.

�A listing of actions or omissions that are grounds for discipline or termination. The argument is if one of these enumerated acts or omissions is not committed, then the employer needs cause to terminate.

�When an employee has been with the employer for a period of time and has received promotions, regular pay increases and good performance reviews, the employee can argue he or she is no longer at will.

Along with appropriate statements in the application, the employee manual is also a critical tool to reinforce the "at will" nature of employment. 

It is also necessary to insure that everyone with hiring responsibilities is trained not to make statements that imply a commitment beyond "at will." There are also other exceptions to the "at will" status, such as civil service employment, collective bargaining agreements, or public policy exceptions to "at will" status.

From the perspective of a Safe Hiring Program, maintaining the "at will" relationship can be vital to an employer in the event issues arise related to workplace violence or misconduct, or it is later discovered the employee made material misstatements or omissions during the hiring process. Even though an employer may have grounds to terminate based upon the misconduct or misrepresentation, the "at will" status will assist the employer's position.

(Excerpt from The Safe Hiring Manual, chapter 18 on "Important 'After Hire' Issues.")  See Safe Hiring Manual

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