Years ago, I recall having a friendly conversation with another attorney in Connecticut where the topic turned to the notion of “At Will” employment.
When we couldn’t settle on an answer, we moved on to talking about whether the Hartford Whalers would ever come back.
I think we had a better answer for that question: Probably not.
But this is an employment law blog, not a sports one, so let’s get back to the topic.
Employment-at-will is, from a legal perspective, the notion that an employer may discharge an employee without restriction, that is, for any reason or no reason, without incurring any liability to the employee.
Simple enough, right?
Well, not quite. First off, Connecticut recognizes two major exceptions to this doctrine:
- The termination cannot violate an important public policy;
- The termination cannot breach an implied contract of employment if one as formed.
And, it should be noted, that there is the obvious exception that the termination cannot violate any other state or federal law — such as the laws prohibiting discrimination.
This again sounds simple enough, but in discussions with employers, there is another topic that comes up — fairness. In other words, employers typically are wise the ask themselves whether a termination under the circumstances is “fair”.
Now that can mean a lot of things in a lot of situations. For example, suppose an employer hires an employee, but 3 weeks later the employer loses a major contract and needs to layoff ten employees. It may not be exactly “fair” to terminate this newly hired employee, but if the employer may be being “fair” by laying off newly hired employees first.
Sometimes, the “fairness” question is framed slightly differently. Suppose you have a newly hired employee who is late to work a few times in the first 30 days and then shows up to work under the influence of alcohol. Can you simply terminate the employee then?
Under most circumstances, yes, and most people would say this is fair because the employer is simply holding the employee accountable under its rules and a new employee shouldn’t get a lot of free passes.
But now suppose you have a 20 year employee who has an exemplary record of service. The employee has no record of tardiness or misbehavior, but after a March Madness weekend, shows up at late to work with bloodshot eyes. It should be noted, though, that a week before, the employee had complained to his boss that the machine he was working on seemed in need of repair.
Under the employment-at-will doctrine, the employers still has the same right to terminate the employee, but I think most people would think this situation ought to be looked at differently. If the employer proceeds with the termination, it’s possible that it opens itself up to a threat of a claim.
Why? Because while the employment-at-will doctrine still applies, a judge or fact-finding would also then ask the same question — does this termination seem “fair”?
If the answer to that question is “no”, then judges and juries will look for alternative explanations. Here, one could argue that it was the employee’s complaint that was the motivating factor in the termination and the employee was being retaliated against for complaining. Otherwise, the termination seems a bit “unfair”.
That type of logic may not be “fair” either, but it goes to show that the employment at will doctrine should not simply be relied on in all circumstances.
I’ve yet to have an employer just say, “I didn’t have a reason for firing the employee. I just felt like it.” That may work under the “at will doctrine” but in the real world, it probably wouldn’t fly.
For employers, always try to look at your decisions through a neutral prism. Or better yet, ask yourself: What would my neighbor think about this? If the termination seems unfair under those circumstances, it may be a clue to re-think your decision.