How to Terminate an At-Will Employee for Misconduct

Author: Darrell R. VanDeusen, Kollman & Saucier, PA

The employment at-will doctrine, accepted by nearly all 50 states, provides that either party may terminate the employment relationship at any time, for any reason. Despite the flexibility afforded by employment at-will, agencies, judges and juries in federal and state courts all expect employers to behave rationally and with a good explanation for their actions.

This document assists an employer with terminating an employee who is classified as at-will, meaning that there is no individual employment contract for the employee and the employer's behaviors have not modified the at-will relationship.

Note: the employment at-will doctrine generally does not apply in the unionized workplace, where just cause for discipline and discharge is typically incorporated into a collective bargaining agreement. Additionally, the employment at-will doctrine generally does not apply to public employment, where due process requirements exist that require an employee be provided with notice of a termination decision and the opportunity to be heard or appeal from an adverse employment action.

Step 1: Prepare for the First Instance of Misconduct

Employers must plan for the possibility that, at least occasionally, employees will engage in behavior that warrants disciplinary action up to and including termination. To prepare for this possibility, employers should create a mechanism that ensures employees (and anyone reviewing the action, like an arbitrator, judge or jury) understand what the employer's expectations are in the workplace.

It is essential that employees know and understand the rules. Thus, employers should make a written disciplinary action policy available to their employees and they should set forth the expectations for workplace behavior. An employer should attempt to have employees sign and acknowledge the terms of the disciplinary action policy, if possible.

Step 2: Investigate Accusations of Employee Misconduct

When an employer learns that an employee may have engaged in a work rule violation, the employer should promptly gather facts about what happened. This can be as simple as asking a few questions or it may be more complicated and require a more substantial investigation.

It is essential that the investigation into the alleged work rule violation be fair and unbiased. So, for example, the supervisor accusing the employee of the violation should not also be the individual who investigates the incident and/or questions potential witnesses. At the very least, the investigation should include an interview with the employee who is alleged to have violated the disciplinary action policy and any witnesses to the alleged violation.

Based on the results of the investigation, the employer should decide whether the employee should be disciplined in accordance with the disciplinary action policy. The employer should strive to consider objective facts as opposed to opinions or subjective personality differences.

Step 3: Ensure That Planned Discipline Will Not Be Discriminatory

The employer should ensure that any discipline, including termination, is administered in a non-discriminatory manner. To this end, the employer should determine whether other employees have been disciplined for engaging in similar behavior. Typically, discipline should be the same for all employees who engage in similar misconduct in similar circumstances.

Step 4: Discipline an Employee for Severe or Repeated Misconduct

Once the investigation has been conducted, a violation established, and appropriate, non-discriminatory discipline determined, the discipline should be promptly administered. An employer does itself no favors by waiting to terminate an employee for misconduct once that misconduct has been established. In fact, the closer in time the discipline occurs to the incident of misconduct, the better an employer's defense if the employee starts a legal dispute.

If a violation is found and supported by objective evidence, best practice is to discipline at-will employees gradually, with increasing discipline for increasing or repeated violations of workplace rules. In that case, the employer should also document the employee's personnel file, including details regarding the accusation, the information obtained during the investigation and the discipline the employer or HR professional ultimately decided to issue.

If a violation is not found or is unsupported by objective evidence, the employer should speak with the employee and ensure he or she is aware of workplace rules. In some cases, a "re-acknowledgement" of the disciplinary action policy or the employee handbook might be worthwhile, particularly where the employee claims that he or she was unaware that the behavior in question is considered a workplace violation.

Step 5: Terminate an At-Will Employee for Misconduct

When the progressive disciplinary system has failed, when the employee simply has not responded to repeated warnings or increasing severity of discipline, an employer may decide that terminating the employee is the best course of action.

An employer should always strive to notify employees of termination in person. When communicating a decision to terminate an employee in person, there should always be two members of management present. Typically, one management employee will explain that the decision has been made to terminate the employee, with a brief statement of the reason for that decision. It is important not to explain the decision in too much detail, here. Any statements by management personnel regarding the rationale for termination will likely resurface if the employee brings a legal claim.

The other management employee should simply observe the exchange. It is crucial that the observer be impartial, unbiased and if possible, removed from the employee being terminated by several degrees of hierarchy. The observer may be called to testify as a witness in a future legal dispute, and in that case, the observer's credibility will be significant in defending the claim.

The employee should be afforded the opportunity to express his or her feelings, within the boundaries of common decency. Management employees, on the other hand, should resist getting into a debate over the decision, particularly where they are confident in the decision to terminate.

If new or additional information is provided by the employee during this meeting that raises questions about the termination decision, the employer can put the decision on hold while the new information is investigated. In that case, a temporary suspension of the employee may be prudent, provided that no promises of continued employment are made to the employee in question, either verbally or in writing.

If the employee has been suspended pending investigation, it may be appropriate to communicate the termination decision by letter. In that case, the employer should send the letter by certified mail, return receipt requested, to ensure that the employee has received notification on a timely basis.


Practical Example

A co-worker tells his supervisor that Bruce disappeared from the Acme Printing Press for over two hours during the middle of the day without clocking out. As Bruce left, he told the co-worker, "Hey, it's five o'clock somewhere." Bruce then allegedly returned to work only long enough to punch out that evening. Leaving work without clocking out is a terminable offense, as set forth in the Acme Printing Press employee handbook, which Bruce signed and acknowledged when he started working at Acme.

Acme should conduct an investigation to determine whether Bruce was actually absent, the reason for the absence, whether Bruce told anyone he would be absent or whether he has some other explanation for the alleged work rule violation. The investigation should, at a minimum, involve interviews of Bruce, the co-worker and the supervisor. It should also involve a review of Bruce's time card to see if it shows that he worked the whole day and whether he was paid for a full day on the day in question.

If the co-worker's story is legitimate and Bruce has no explanation for clocking out early, the employer should consider Bruce's work history rather than simply terminating him immediately. Has Bruce ever clocked out early before? Does Bruce have any past disciplinary issues? Is Bruce a productive employee? Do Bruce and his accuser have any history of conflict in the workplace?

The answers to any one of those questions could be significant and could encourage Acme to simply warn or discipline Bruce rather than terminate him.

Acme ultimately determines that Bruce did in fact leave work without clocking out to go watch a basketball game at the bar down the street, and that he was paid as if he worked during that time. While this is a dischargeable offense, Acme must determine whether other employees have been disciplined for such behavior in the past. If so, Acme should determine what discipline was imposed in those cases. Similar discipline in similar situations is essential to avoid claims of discrimination.

For example, if Bruce is black, and other white employees were permitted to go watch a basketball game during work hours without anything more than a warning, the employer should expect a race discrimination lawsuit from Bruce if he is terminated.