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Q: As a human resources employee, I am often called upon to counsel
managers prior to their taking disciplinary actions against problem employees. Many times the manager just wants to terminate the employee for performance problems without any documentation or warnings in the file. As I talk to the manager about the importance of documenting problems and giving second chances, I invariably get the notion of “at will” employment thrown back at me. How am I supposed to reconcile “at will” employment with all of the actual constraints and limitations imposed upon employers?

A: Many people who’ve heard of the concept of at-will employment don’t understand exactly how it works in practice.

At-will employment technically means the person works at the will of both parties. In other words, if at any time either party no longer wants the relationship to continue, it can end without cause or prior notice to the other side. This typically is described in employment agreements or handbooks as being able to terminate the employment relationship at any time and for any reason or no reason at all.

This is likely the problem you are running into. Managers often ask why they need to document problems with employees or give second chances, warnings or other forms of progressive discipline if they can truly terminate an employee for any reason or even no reason at all.

The problem is that although Oregon is an employment-at-will state, there are many exceptions to the rule.

First, state and federal laws prevent discrimination based on such characteristics as race, gender, national origin, age and religion. Additional laws prevent employers from terminating employees based on the employees’ disabilities or their use of protected leave. Laws prevent employers from retaliating against employees who make complaints about certain types of unlawful conduct. And then there’s the ever-evolving case law concept of wrongful termination, which prevents employers from terminating employees for fulfilling important public duties or exercising private employment rights. All of these protected classes and categories work to alter the at-will nature of the relationship.

The response you probably hear from the managers when you talk them through these issues is, if they’re not firing the employees for any of these unlawful reasons, why can’t they just go ahead and fire them? This is really the heart of the matter.

Because there are so many different protected classes, there is always the threat of a terminated employee fitting into one of those classes and assuming he or she was fired for that status. Then the issue becomes not why you terminated the employee but whether you can prove that you didn’t terminate for an unlawful reason.

This is when documentation, warnings and other forms of progressive discipline pay off. If you’ve created a history of giving warnings and engaging in progressive discipline, it will be much easier to convince a judge or jury that the reason you gave for the termination was the actual reason you fired the employee.

This is the part you need to explain to the managers. Although the law technically allows you to terminate an employee because you don’t like the color of her shirt, try to imagine standing up in front of a judge and jury and convincing them you actually fired her for that reason. Now, imagine that employee has taken family leave this year, is the oldest person in the office and has recently complained about sexual harassment. If your manager can’t prove the employee was terminated for a legitimate reason, and one that actually warrants termination, chances are he or she is creating potential liability for the company.

Mitch Baker is of counsel at the Portland office of Fisher & Phillips and specializes in labor and employment law and employment discrimination. Contact him at 503-242-4262 or [email protected].