When At-Will Works

At-will employment - the concept that employer or employee may terminate their relationship at any time, for any reason - is subject to so many exceptions that people frequently despair. Depending on the state, at-will can be exempted for such things as violations of public policy, discrimination, or a 'contracted' employee.

Montana is the only state that does not follow the at-will doctrine for general employment. However, an employee in Montana who is still within the company-determined probationary period (or, if the company does not have a probationary period, the first six months of employment) can still be termed under what is essentially an at-will relationship.

HOWEVER - there's good news. Done properly, at-will can benefit the employer. The most important thing is to mention at-will every time (or at least most times) an employee or job candidate signs a document.

Case in point - Radio Shack. A former employee alleged that Radio Shack terminated her for medical reasons. But the employee:

• First, expressly agreed with the terms of her “Preliminary Online Application” that, if employed by the Company, she would be employed at-will. The document also provided that if she was hired, her at-will employment could only be modified by a separate written document signed by the employee and an executive officer of the Company.
• Second, in her formal “Application for At-Will Employment,” the plaintiff again agreed to these same terms.
• Third, in acknowledging receipt of her “Team Answer Book,” the plaintiff signed a form confirming her at-will employment status with the Company.
• Moreover, there was also evidence of a personnel record noting the plaintiff had taken a leave of absence, which stated that “The below named person is an AT-WILL employee and no information on this form shall change the employment status.”

That's a lot of documentation to support the at-will concept. And a good reminder with what to do is here, from McGuire Woods LLP.