At-Will Employment2019-05-15T11:48:13-05:00

At-Will Employment

At-will employment means that either party (the employer or the employee) can terminate the employment relationship at any time, for any reason. There is no need to show “good cause” for the termination.

 

At-Will by Default

Illinois law generally assumes an employee is “at-will” unless the employee can prove otherwise, usually through written documents. However, even at-will employees cannot be fired for reasons that are illegal under state or federal law (we discuss this below). In the end, at-will employment gives employers wide latitude to fire employees. Not all states presuppose this status, but most do.

In order to maintain the presumption of at-will employment, employers should take steps to classify employees as “at-will.” To do this, employers should:

  1. Actively define your employees as “at-will.” You should make this clear in an offer letter (see below).
  2. Avoid implying any kind of contractual relationship with employees. This can happen accidentally in a handbook (read here for some handbook Dos and Don’ts) or in an employee agreement.

 

What Is an Offer Letter?

Simply, it’s a formal letter sent from an employer to a prospective employee as an offer of employment. There is no required format for an offer letter, but it generally lists the proposed terms of employment – salary, responsibilities and duties, vacation and sick days, office holidays, benefits, expected schedule, etc. In addition to specifying that the employee is “at-will” (if they are), it notes any other expectations the company holds. An offer letter does not have to include all the above terms, but it should give a general sense of what you expect from the employee.

 

When You Can’t Fire an Employee

At-will employment does not grant carte blanche to terminate employees. Be wary of “wrongful terminations,” which are dismissals which breach an implied contract, violate a state’s public policy, or run afoul of any discrimination or whistleblowing laws.

  • Implied Contract: If there is no written agreement outlining the terms of employment, the employee may be able to show there was an implied contract based on communications between the employer and employee.
    Take an employee handbook, a common example: if the handbook specifies pre-termination procedures which the employer does not follow, then the employee may have been wrongfully terminated. (So what should I include? Try our List of Possible Sections.)
  • Public Policy: An employee is wrongfully terminated if the termination violates an established public policy of the state. For example, an employer cannot fire an employee for refusing to engage in illegal activity at the request of the employer.
  • Whistleblowing Laws: There are state and federal laws which prohibit termination in retaliation for “whistleblowing” activity. Whistleblower laws protect employees who report wrongdoing within their company (whistleblowing) from being terminated in retaliation for said reporting.
  • Anti-Discrimination Laws: Anti-discrimination laws prohibit terminations based on race, gender, sexuality, or any other legally protected characteristic. (So what grounds might justify termination? Read our post Can you fire Nazis in Illinois?)

 

Have questions about at-will employment? Do you want to make sure your employee agreements do not imply a contractual relationship? We can help! Contact G & G Law today.

 

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