Does stating an employee's status (i.e. 40 hours/wk, full-time) constitute an implied contract?

Chayer

If an employer indicates, in it's offer letter to a prospective employee, the # of hours offered (for example "This letter confirms your appointment as a "Title" working 40 hours per week beginning 01/01/01. Your hourly wage will be $0.00." )Would the employee be able to state that this offer letter is an employment contract and that it is the obligation of the employer to provide that employee those amount of hours per week? Any help would be appreciated!

Down_the_Middle

I do not think that verbiage obligates you in any way to a contractual obligation. Presumably, you have other policies that address the employers right to staff/schedule in accordance with business needs, at-will, etc.... In the event you have no such language in existence, consider adding some to give you rights to run the business as deemed necessary. You can also add language at the end of your offer letter stating that no contractual obligation is being offered.

Brad Forrister

[font size="1" color="#FF0000"]LAST EDITED ON 10-24-02 AT 03:31PM (CST)[/font][p]Be careful with offer letters. They can, indeed, create binding contracts unless you have appropriate disclaimer language. Without seeing your whole letter, it's hard to say for sure whether yours will cause problems. General rule: If you don't want it to be a contract, make sure you say so.

Some good provisions to include:

[ul] [li] Either the company or the employee may terminate the employment
at any time, with or without cause or reason.

[li] No policy, practice, rule, handbook, or other document is intended to be a contract of employment or to contradict the terms of the document, and the employer reserves the right to alter, revoke, or depart from its policies or
practices at its discretion.

[li] No manager or supervisor has the authority to make any promises that
contradict the document, and any agreement that contradicts the document must be in writing and signed by a senior officer of the company to be enforceable.

[/ul]


Brad Forrister
Director of Publishing
M. Lee Smith Publishers

SandiF

Brad,

We have all of the information you listed in our employee handbook, which the new employee signs, but not in our offer letters. Is this enough, or should we add it to the letter too? Thank you.

Sandi

Don D

Sandi: I'm no lawyer, but I would think it best to have what Brad suggests IN THE LETTER, since they came to work for you based on the letter and they are already employees by the time you get around to giving them the handbook.

Gillian

[font size="1" color="#FF0000"]LAST EDITED ON 11-06-02 AT 04:25PM (CST)[/font][p]Not that I'm anxious to start a debate, but as an employer who elected not to be "at will" in part because of the negativity that it projects to employees, these responses confirm that we made the right decision.

Don D

Actually Gillian, now that you've opened the debate, the "At Will Doctrine" grants the same to both the employee and the employer. Are you suggesting that you have decided to go with a source of personal inner wisdom over that of all the thousands of attorneys and lawmakers who carefully thought out and inacted the protections of "at will"? In choosing to opt out of at will, you have painted yourself into the potential proverbial corner or at least you are toying with that prospect on a daily basis because of your faith in mankind. Not unlike the fellow who casts aside all the data on the prospect of being murdered in the alleyway, and, trusting all of mankind, proceeds unarmed down that path. Didn't you once tell us that "There is no such thing as a problem employee?"

Gillian

No, I didn't decide to change. The Presidents Cabinet voted unanimously in favor of the change after a healthy debate that lasted over a year. The fact of the matter is that in order to avoid wrongful termination charges we have to operate in a way that gives employees due process and to terminate for good reason. Since we operate in a "just cause" way why not just say that we do and not try to maintain the "at will" myth, yes, that is what our favorite labor attorney, Theresa Gegen, calls it - check out her response in the greatest HR myths thread. I know that we are doing something contrary to practice and certainly the advice of most attorneys, although the good ones will say that an organization should choose their employment relationship according to the organization culture and ours is best using the "just cause" philosophy. There is an 1884 court case, Payne vs. Western Railroad, which states "Men must be left, without interference to buy and sell ....to discharge or retain employees at will for good cause or for no cause, or even for the bad cause without being guilty of an unlawful act, per se". This sounds remarkably like employment at will language, so I suppose there have benn thousands of attorneys over the years who have advised the maintainance of "at will" language but do we have to do business the same way for 118 years?

Crout

Why not have it both ways? Why not maintain the "at will" doctrine, AND operate in a fair and consistant manner? I don't see it as an "either, or" proposition.

Gillian

You can, and most people do. For us, though, the negative implication of retaining the right to terminate "at will" (which isn't done anyway) isn't something that we want to continually drum at employees. We think that the gain from dropping "at will" is worth more that the little bit of legal protection that "at will" provides.

LisaMN

I'm with Gillian on this one. To release someone based on an "at will" doctrine is to use an ethically questionable justification.

By relying on "at will" the leadership of an organization is creating a culture that maintains fair, equitable and reasonable treatment in dealings with employees most of the time; but, just in case we can't be bothered to treat you fairly, equitably and reasonably we want you to know that the law is on our side.

However, I've been unable to convince my organization of the justness of the cause....

Rockie

Chayer: The advice indicating what should be included in offer letters is sound. I would add that in the case of a salaried employee, you may want to state salary as "$50,000 annually, payable bi-weekly at $1,923.08". Otherwise, if you hire an employee in January and you have to terminate in March, the employee could argue that the letter is a contract as it stated an annual salary of $50,000 - you may be obligated as an employer for the entire amount. (This has happened before).

Don D

Our offer letters, notwithstanding how the railroad did it a century ago, always state the pay as covering one pay cycle, e.g., "...payable bi-weekly at $2600.00, which, if annualized, would be $67,600.00", for the reason Rockie states. But we don't quote it as an annual salary per se.