The Employee Handbook; Protecting Employment At Will

“At Will” employment is the term used for the basic employment adage that an employer can fire any worker for any reason or for no reason at all . . . for good cause or bad cause or no cause at all; an employee is employed “at the will” of the employer and the employer determines how long to employ a worker!


Employers need to be aware that legislation and court decisions in a number of states have eroded At Will employment. Courts and legislatures are finding reasons to require just cause — a rational business justification — before a firing can be warranted.

The biggest reason for the erosion of At Will employment has been changes in the various federal, state and municipal laws prohibiting discrimination. Federal and state anti-discrimination laws prohibit the firing of an employee based on such characteristics as age, race, religion sex, national origin, and in some states, sexual orientation. A person no longer may be fired for “any reason” if the basis of the dismissal is a prohibited employment practice.

At Will employment is also being eroded in cases where an employee is either recruited from another company, accepts a position based on employer assurances of job security instead of accepting another job offer, or transfers from one position within a company to another. If promises were made to the employee to lure the employee to join the company or accept another position with the employer, courts have found a way around At Will employment, and awarding damages to the discharged employee.


The one instrument that may erode At Will employment the most is an ill-conceived Employee Handbook. By creating an Employee Handbook / Employee Manual incorrectly, the employer may inadvertently hold out the promise that employees will not lose employment as long as performance is satisfactory. For example, where disciplinary steps are outlined, some courts have said that a contract has been established between the employer and employee so that the employee cannot be dismissed without good cause.

For years, a number of courts in various states have sought to erode At Will employment through this legal theory known as “Implied Contract.” Implied Contract means that as a result of an employer’s conduct, an employee has an “implied” contract with the employer requiring that an employee’s discharge be based on “cause,” such as an employee’s wrongdoing or inability to perform the job. Courts do look at a Company’s Employee Handbook or Employee Manual in making such a determination.

It is most important that an Employee Handbook be properly written in order to maintain At Will employment. An explicit disclaimer in the Employee Handbook can preserve the At Will employment relationship in the face of an employee’s implied contract claim. Not every disclaimer will have the desired effect of maintaining At Will employment in the workplace. An attorney drafted disclaimer is preferable.

Here are some suggestions to maximize an employer’s ability to keep Employment At Will:

1. Your Employment Application should specify that Employment is At Will.

2. Any Job Offer letter should specify that Employment is At Will.

3. Have a new employer sign an “At Will” Employment Agreement
as a condition of Employment.

4. Make certain that an “At Will Employment” acknowledgment receipt is signed by the employee when the employee receives the Employee Handbook.

FingerTipManuals Employee Handbooks are written by an attorney for each individual state and provide the language which reinforces employment At Will. Legal Forms and Human Resource Forms as an additional tool to reinforce At Will employment.

An attorney's expertise affords the employer peace of mind, and therefore does not require the employer to figure out the terminology which an employer hopes will uphold At Will Employment.