The Fear of Terminating and Employment At-Will

Georgia is an at-will state. That means that, absent an employment contract, employees have no guarantee of employment. The employment relationship is based upon mutual consent of both parties (employer and employee). Of course, there are limitations to the at-will rule, such as discrimination or retaliation.

In my experience, employers are sometimes scared to terminate employees. They fear it will result in a lawsuit or discrimination claim. To help alleviate this fear, I give the "at-will" lesson.

The "At-Will" Lesson:

I use this lesson most often when I am discussing problem employees who toe the line with regard to company policies, never quite committing a serious enough infraction to be terminated but always creating some level of workplace drama.

The lesson goes something like this:

- Can you terminate an employee for misconduct?

- Can you terminate an employee for chewing gum?

- Can you terminate an employee for wearing a blue shirt on a Tuesday?

- Can you terminate an employee for being homosexual?

With the note that it depends on the state in which you operate, the answer to the each question above is yes in Georgia.

At-will employment means you can terminate an employee at any time, with or without notice, for any reason not prohibited by law.

Seriously, any reason. I don't like you, you're fired...acceptable. I don't like people who wear blue, you're fired...acceptable. As one of my business advisers says: any reason, which includes a good reason, a bad reason, no reason, or a stupid reason, so long as it is not an illegal reason.

That being said, I don't recommend using the at-will doctrine unless it is the only choice.

Lo the Peril: Just Because You Can, Does not Mean You Should.

While the law does not prohibit termination for stupid reasons, it does not mean you are beyond scrutiny for doing so. If you terminate an employee who is a member of a protected class (sex, religion, color, national origin, race, disability, age) for "no reason," it will likely end up being a discrimination claim or a wrongful termination lawsuit, as it could appear that the real reason was discrimination.

The idea is that there is a reason for termination, and "no reason" is a pretext for a discriminatory reason. If an employee is fired without being given a reason, he or she is likely to presume the reason is illegal. The employee will feel wronged and will seek to right it, either by filing a claim with the EEOC or by seeking out an attorney.

Beyond the liability created by terminating for "no reason," the cost of turnover is significantly higher than the cost of retention. If you can address problems through disciplinary action and training, then that is the path to resolve them.

In short, it does not make good business sense to base terminations on stupid, bad, or no reason other than personal preference. It creates liability and costs the company money.

So, Why Mention It?

The knowledge of "at-will" employment is beneficial because it can alleviate an employer's fear relative to termination.

Looking at it from another point of view, what the "at-will" doctrine really states is, you cannot terminate an individual because of his or her color, religion, gender, age, disability, national origin, when an employee refuses sexual advances, or when the employee engages in a protected action such as trying to organize a union, complaining to the EEOC, or submitting a safety violation.

With those exceptions, termination is based upon employer or employee discretion, which is an important point to remember.

When Should I Utilize the "At-Will" Doctrine?

Ideally, a company would be able to address every conceivable problem through policy. It is just not feasible to do so, and even if you could, your employee manual would be overwhelming. Barring the possibility that your policy manual is thorough enough to cover every issue, you will likely have situations that arise which may warrant termination.

Even when an employee's performance is up to standards, and the employee has not violated any policies, he or she may still be negatively impacting the organization. Examples of this type of situation are when an employee does not work well with other employees, the employee's style of communication does not mesh with his or her supervisor's style of communication, the employee feels entitled, constantly complains, or has a generally negative attitude.

In the scenarios above, the employer may need to utilize the employment at-will doctrine as the reason for termination. Generally speaking, termination should be a "last option" and should follow orientation, training, searching for alternate solutions, and disciplinary action, with documentation of each step. When possible, employers should have the employee acknowledge in writing that each step was taken.

To provide an example, if an employer has a negative employee who completes her tasks, but complains about having to do them, the employer should address the issue by talking with the employee and documenting the conversation. Subsequent issues should likewise be addressed along with documentation of how they were addressed. If the problem continues, the employer can terminate employment, knowing that the company has a documented reason for termination if there is a need to defend the decision.

Remember Unemployment Costs:

One last thing to remember about utilization of the at-will doctrine is that terminating at-will does not prohibit the employee from obtaining unemployment wages. That being said, it is worthwhile to consider the negative impact the employee is having on the organization and determining if the cost of unemployment is worth removing the individual from the workplace.

Last Note:

Employers should embrace the employment at-will doctrine and provide constant reminders of at-will employment to employees throughout their policy manuals and any supplemental policy documents they distribute. By asserting that employment is "at-will," the employer maintains flexibility in making employment decisions.

In combination with the assertion of the at-will doctrine, employers should endeavor to help staff succeed, which includes orientation, training, and disciplinary action to address problems. Documentation is key when performing those duties, as it will help protect the organization if the employment actions are questioned.