Important question..needs to be answered quickly

snipes526 · March 2003

In the area of employment, what does the term "fire at will" mean. Does Mississippi follow or allow this policy? Who benefits most and why (employer or employee)

If anyone can answer this please help

Sunny · March 2003

I think you are referring to the "employment at will" doctrine which means that both employer and employee are free to end the employment relationship at any time. I believe that Mississippi is an "employment at will" state which means that as long as the reason for termination does not violate the federal anti-discrimination statutes (i.e. is not based on race, sex, age, etc) the employer may terminate or the employee may quit for any reason or no reason at all.

Shawn · March 2003

The previous post is correct. However, in my view, employment at will does not exist anywhere in the U.S. Go ahead and try to tell a jury that you fired Joe Six Pack Employee for no reason......just felt like it.

Leslie · March 2003

Exactly. We usually reserve "at will" for managers/directors who have come under fire for not following the Board/CEO/CFO company "direction." They are usually very amenable to that, as it secures a severance package, and keeps a clean, untarnished termination record. However, walk into a unemployment hearing armed with "at will" and you will lose...every time.

Don D · March 2003

All of the above posts are correct. No one ever claimed that firing at will would have a positive outcome for a company in a UI hearing. No company would send a representative to such a hearing in the first place. Come to think of it, there would never BE such a hearing since the claimant would get benefits simply on the face of his application for it. I can tell you, however, at will does simplify terminations to an extent where otherwise you will be required to muddle through a progressive disciplinary process or carefully walk the tightrope of 'termination for cause'. Most typically it IS utilized for manager, supervisor or higher level exempt employee strategic exits. Carefully planned and executed at will terminations will not get to a jury in the first place if the company, with its attorney, do their homework properly.

David Nagle VA · March 2003

Mississippi is an at will state. Employment at will refers to the presumption that exists with respect to a contractual term (duration) of the employment relationship. Up until around 1900 the s0-called european rule was that hiring was presumed to be for an annual term (which was not unreasonable in an agrarian economy). Around 1900 a number of U.S. cases started referring to the "American rule" as being one that employment could be terminated by either party, with or without notice or cause, i.e., at will. Employment at will means that an employer can discharge an employee for good reason, bad reason, or no reason at all, but NOT for an illegal reason, i.e., race, religion, color, sex, national origin, age, disability, jury duty, filing a workers comp claim, union organizing etc. In light of the employment at will rule, an employee cannot sue on the simple theory that he or she was discharged without cause; he/she must identify some alleged reason for the discharge which is unlawful. Rarely will an employer defend simply by puttinf orth the employment at will doctrine. Since most employers don't discharge employees without any reason, when an employee sues claiming that he/she was discharged for an illegal reason, the employer usually defends the case by identifying the lawful basis the defense to a suit alleging that an employer States vary greatly in their willingness to find exceptions to the at will doctrine, based on public policy of the state.

Crout · March 2003

There is on-going debate on the myth vs. reality of the employment at will doctrine with good arguments on both sides. A few months ago Gillian faxed me an excellent piece on this topic. I can forward a copy to you, if you'd like. For my part, I think that while we should do all we can to try and preserve the at-will doctrine, (especially when preparing policy statements for the handbook) we should also follow best practice when terminating anyone. The irony of that statement is that "following best practice" realistically means that there is no such thing as at-will employment, since one would engage in a rational process before terminating an employee. So, can we really have it both ways? Maybe not.

ritamcguire · March 2003

Crout:

In your response to an "at will" question you mentioned that Gillian had sent you a good summary of an "at will" policy. Could you fax or e-mail me a copy of Gillian's response? Fax: (770) 487-0840. E-mail: [email]kevin@paschall.com[/email].

Thanks!

Pork · March 2003

I add my 2 cents worth to also add the category of Military service /civilian employee called to active duty under USERRA a federal law protecting the employee who is also a military service, including Coast Guard, person. These employees are also protected from termination or seperation from your employment opportunities, benefits, and entitlements under any labor agreement or a published employee handbook or policy, you must have great and overwhelming cause to terminate your employer/employee relationship. Been there and done that, even though the individual verbally informed us in person that he was quitting our employment, we processed him out as requested in his written request for cash out of our benefits and entitlements programs (vacation time and sick time, a benefit we provide to all departing employees who "voluntary quit"). After the fact, he is trying to say he did not quit under an "at will" condition, that he was forced to quit because he had to go on active duty, an event he has done several times in the past for two weeks training. Our fault was that "we failed to get a written resignation" that said the same thing he told us and that he signed. Problem was the payroll clerk did not know there was "special handling required" for military service employees. I did not find out the individual had quit and left our employment for about three weeks after he had departed! We are now facing a law suite under USERRA because there is an attorney, now signed on with a contingency fee of 50% of whatever the settlement or trial may produce. We re-hired the guy 141 days after his last day to rejoin our employment, but the government do gooders put it in his head that we did wrong! BOTTOMLINE ADD USERRA TO YOUR LIST OF PROTECTED CLASSES. ALL IS NOT SO CLEAN UNDER THE "AT WILL" DOCTRINE!

PORK in Mississippi

CD PHR · March 2003

Both benefit, in my opinion. 49 out of 50 states currently follow the employment at will doctrine. Montana is the only exception; it requires the employer to have just cause when terminating. That sounds like a great protection for the employee until you consider that no one is terminating employees for no reason in the first place. It costs a lot of money to hire and train someone, so generally when you terminate them there actually is a good reason for it.

Mississippi and other southern states in the conservative fifth circuit do a much better job of upholding true employment at will, especially when compared to more liberal states such as California. However, as prior posts pointed out, the majority of employees these days will fall into SOME protected category (age, race, religion, disability, taking protected leave, whistle-blower, etc) so we must cross our t's and dot our i's regardless of employment at will.

Pork makes a good point - it is a little known fact that employees returning from military leave do NOT fall under employment at will. They must be allowed to return to work within a specified time frame after active duty ends (varies according to length of active duty period) and can only be terminated for a compelling reason for a period of time after they return (6 months, I believe)? Good luck, Pork, it sure sounds like you're getting a raw deal.

mgustafson · March 2003

The great State of SC has a long standing tradition as a "Employment at Will" State, but as the other responders have reported: Good luck trying to defend a termination on grounds of "at will". That said, you do stand a chance of winning your State Unemployment, EEOC, HAC, and civil litigation charges if your employee handbook makes no references to constructive or progressive discipline within any policy or practice to include attendance. If your handbook simply states you can be discharged for cause or no cause and makes no other references to progressive discipline - you should be alright - but you'll fight the legal storm.

WOCO Frank · March 2003

Good points raised above. In most states, though, you have to draw very careful distinctions between what is legally acceptable for termination, and what is legally acceptable as an unemployment compensation disqualifier. In other words, you can legally terminate someone quite easily, but it doesn't mean you won't pay unemployment.

Missouri's top official for unemployment and workers compensation once told me he thinks employers would be much better off if they focused on whether someone should be terminated, and can be legally, instead of worrying whether they will be able to beat the unemployment claim. His perception is that too many employers hang on to bad employees just so they won't have to pay unemployment.

Important question..needs to be answered quickly

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