Terminating the Employment Relationship

c. Terminating At-Will Relationships At-will employees do not have a property interest in their employment, and therefore there is no “for cause” standard applicable to their possible discipline. In other words, they do not have the right to pre-disciplinary due process under Skelly , or to a post-disciplinary appeal hearing. Therefore, local rules should not provide any post-disciplinary appeal procedure for at-will employees. Doing so may change their status from at-will to for cause.

Certain employees have statutory appeal rights regardless of whether they are at-will or for cause. For instance, non-probationary, at-will public safety officers do not have due process rights under the constitution because they are at-will. However, they are entitled to post-disciplinary appeals under the Public Safety Officers Procedural Bill of Rights Act and Firefighters Procedural Bill of Rights Act, which establish appeal rights for employees covered by the Acts (e.g., police officers and firefighters).

LCW Practice Advisor

Occasionally, local ordinances or personnel rules set forth procedures for terminating at-will employees. An agency should ensure that it reviews local rules and ordinances to confirm that local rules do not inadvertently create disciplinary rights for at-will employees (e.g. mistakenly converting at-will employees into for cause employees). If such rules exist, an agency must follow them.

Note that utilizing progressive discipline will not convert at-will employees to for cause employees. Agencies should always apply discipline fairly and consistently.

LCW Practice Advisor

While it is true that at-will employees can be terminated for no reason at all, at-will employees cannot be terminated for “illegal” reasons. For example, at-will employees are protected by discrimination, retaliation, free speech, “whistleblower,” privacy and other similar laws. Also, they typically have the right to representation and the right to organize and bargain. Even though a public agency is not required to provide an at-will employee reasons for termination, the agency should always have a sound reason for terminating an at-will employee that it can articulate in case the employee challenges his or her termination. Sometimes public agencies do not thoroughly evaluate the termination of an at-will employee (e.g. the agency does not adequately warn the employee prior to termination, the agency does not use progressive discipline, or it fails to scrutinize whether there is a legitimate reason for termination). This may enable at-will employees to challenge a termination, for example, as discriminatory. It is important to remember that although an employee may be at-will or serve at the pleasure of the agency, that status is not an absolute protection against liability. If a separated at-will employee alleges he/she was dismissed for illegal or discriminatory reasons, the employer will need to articulate the actual legitimate reasons as a defense to the allegations of discrimination.

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 12