WHAT DOES AT-WILL EMPLOYMENT REALLY MEAN?

By: Harvey B. Cooper

When we counsel employers we are sometimes asked, "Well, I am an at-will employer.  Doesn't that mean I can do whatever I want?"  The answer to this question is "no".

Nebraska is an employment at-will state.  But what does that mean?

Employment at-will is not a law, but a rebuttable presumption that if you hire an employee for an indefinite term, the employee can be terminated at any time, with or without cause, and with or without notice, as long as the termination does not violate existing law, public policy or an oral or written contract.

For example, although an employee is at-will, if an employment contract or policy requires cause for termination, you must have cause to terminate the employee. Similarly, you cannot terminate an employee because of their race, color, gender, religion, age, disability or any other status protected by the discrimination laws. Nor can you terminate an employee who whistle blows or engages in other protected statutory activity.

An employer can lose the employment at-will presumption by its actions as well as those of its supervisors.  For example, an employer loses the at-will presumption by disciplining or terminating employees who engage in concerted protected activity, such as discussing wages or protesting working conditions.

What should an employer do?  First, take no action that promises an employee a fixed term of employment, such as one year.  Second, have a flexible, discretionary discipline system, not a rigid lock-step progressive discipline policy requiring cause for termination.  When applying discipline, do not discriminate against employees because of their race, color, gender, religion, age, disability or any other status protected by the discrimination laws.  Third, review your employment policies and employee handbook to ensure they are discretionary guidelines and not a contract.  Fourth, train your supervisors in the law, how to treat your employees, and what they can and cannot say to employees.  Specifically, they must not make any promises to employees contrary to your policies, such as a fixed employment term, termination only for cause or additional benefits.

 

The employment attorneys at Abrahams, Kaslow & Cassman are available to assist you with your employment law concerns.  Please contact Harvey B. Cooper at (402) 392-1250 to discuss the issues in this article.