You’re At-Will – You’re Fired

March 17, 2016

True or False: Human resource employees sit in their office and drink coffee/soda tracking their NCAA brackets all day, since their job is simple in an at-will employment state?  

True or False: Since Michigan is an “at-will” employment state, whenever you terminate an employee, just tell the employee that he/she is “at-will” and all your potential legal issues magically disappear.

Hopefully you answered “false” to both questions, because otherwise it becomes a very expensive proposition for you and your organization.  

Even in Michigan, which is an “at-will” state, it is unlawful to terminate an individual based on race, sex, color, origin, age, disability, religion, veteran status, height, weight and marital status. So, the best human resources practice is to be sure all your employment documents confirm you are an “at-will” employer but for performance related issues, to act like you need to have “just cause” to terminate the employee.  

To defend any allegation that you terminated an employee based on one or more of the protected characteristics, you need to prove that you had a legitimate, non-discriminatory reason for the termination. Proclaiming in a trial, administrative hearing, or other forum that the employee was “at-will” is essentially useless.

However, you can confirm the legitimate non-discriminatory reason for the disciplinary action by testifying [and introducing documents] that you provided the non-performing employee with:

  • A verbal discussion about performance;
  • A written document regarding the performance;
  • A performance improvement plan with a specific time frame and specific performance objectives.

You can sleep better at night knowing you were fair and that your organization is more legally protected by showing your actions are not related to protected characteristics.

Contributed by Jeff Fraser, Miller Johnson.

View the on-demad webinar “Disciplinary Action: The Appropriate Balance” with Jeff Fraser.