Employment Policies and At-Will Employment

While progressive discipline and adherence to company policy can help an employer defend a challenge to an adverse employment action, employers need to keep in mind that, in the absence of agreement otherwise, in most jurisdictions employees are "at-will."  "At-will" employment means that employees can be terminated at any time for any reason (other than unlawful), or no reason at all, with or without notice.  Likewise, at-will employees can terminate their employment in the same manner.  In a non-union setting, employers should avoid policies that commit them to steps in imposing discipline for performance, conduct or absenteeism or responding to employee complaints.  Even with a disclaimer advising that policies are not contractual and are subject to change, employees can assert claims based on reliance, contract, or differential or discriminatory application.  It is much better for employers to retain discretion.

In addition, employers should avoid policies that are confusing and difficult to implement, or that will not be applied in practice.  Employers should reconsider policies where exceptions swallow the rule.

For more on employment policies that can do more harm than good, see my comments on SHRM's website at: www.foxrothschild.com/Newsstand/News.aspx

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