Each fall, I teach an employment law course. The first few chapters cover foundational concepts and regulations, including how to distinguish an employee from an independent contractor, the economic realities test, joint employment, and other important concepts.
But perhaps the most foundational is “at-will employment.”
This concept shouldn’t be a mystery to managers. It is likely addressed near the beginning of your employee handbook. Yet as I graded discussion forums on the topic this week, I started to wonder if my students suddenly knew more about at-will employment than some managers do.
If my hunch is correct, that’s a little concerning.
At-will employment is a foundational concept in U.S. employment law, although the rules and exceptions vary by state. In general, without an individual employment contract or collective bargaining agreement governing the terms of employment, either the employer or employee may end an at-will employment relationship. That does not mean, however, that an employer can terminate someone for an unlawful reason.
Let’s start with the easy part: the employee.
If a new hire doesn’t show up on their first day, walks off a shift and never returns, or doesn’t give two weeks’ notice, they generally have the right to do so. Of course, your organization may have policies that address these situations, and state or local considerations may apply, but the basic principle remains: the employee can choose to end the employment relationship just as the employer can.
Here’s where the employer carries significantly more accountability.
An employer may be able to terminate an employee at will, but that does not make every termination lawful. An employment decision cannot be based on a discriminatory or retaliatory reason, among other legal limitations.
I’ve seen similar situations play out many, many times over the past 20 years.
A manager becomes frustrated with an employee. Maybe the frustration turns into a full-blown clash. Somewhere along the way, communication breaks down. The employee who was once in the manager’s good graces is now seen as a problem.
So, now what?
The manager finally drops by the HR office to discuss this “problem employee,” and some version of the phrase, “We can let them go. They don’t have to keep working here,” starts to signal what the manager believes at-will employment means.
Technically, they may be right that the employment relationship can be ended.
But let’s think beyond the frustration of the moment, which by this point may be bouncing off the walls.
There’s always a reason employment is being terminated.
Perhaps it’s performance. Perhaps it’s misconduct. Perhaps it’s a layoff. Perhaps it was simply a bad hire, which often circles back to performance.
The important question is: What is the reason?
If there is a disagreement, fine. Did the manager attempt to address the issue? If so, what steps were taken? Was there insubordination? A performance issue? A policy violation? A breakdown in communication?
And then comes HR’s favorite question:
Was any of this documented?
If not, that “at-will” get-rid-of-this-employee dream can suddenly become a nightmare for everyone involved, especially the organization.
This is why managers need to understand the practical application of at-will employment, not simply memorize the definition.
Managers should involve HR early, particularly when an employee relationship is deteriorating or a potential termination is being considered. A conflict that might have been addressed through coaching, communication, or internal intervention can become much more complicated when emotions take over, and decisions are made without considering consistency, documentation, policy, and legal risk.
HR’s role is not simply to figure out how to get someone out the door. Constructive discharge is a real legal concept that can create significant legal risks for an organization. Sometimes the better solution is to slow down, understand what is actually happening, and determine whether the situation can be resolved.
It’s always interesting to read students’ comments on this topic. Many don’t have HR or management experience, so they are approaching the chapter with fresh eyes and through the lens of their own experiences. Some have experienced what they believe was wrongful termination. Some have seen it happen to people around them. And many are trying to understand both sides of the employment relationship.
What I noticed this time, though, was the outpouring of sentiment about how important people’s jobs are.
Our jobs are our livelihood. They support our basic needs, our families, and our quality of life.
That made me think a little harder about at-will employment.
Whether it’s a new hire who ghosts an employer and strains the team or an employment decision made by an unskilled manager, we have to be intentional and accountable when making decisions that affect the people around us.
At-will does not mean without responsibility.
And that’s a lesson every manager should understand.
Looking to develop more confident and capable managers? Manager development is one area where I work with organizations to build stronger management skills and capabilities. Feel free to connect with me if you’d like to talk about what that could look like for your team.
This article is intended for manager education and discussion and is not legal advice. Employment laws and exceptions vary by jurisdiction, so consult qualified legal counsel for specific employment situations.
