Employee Handbook

As promised last week, we are going to talk a little more about at-will employment. If you are a private employer, you are going to want some at-will language in your Employee Handbook. 

At will-language provides you with the opportunity to terminate an individual with or without cause. This means that your employees don’t necessarily need to have done something inappropriate in order to be terminated. 

While we don’t recommend terminating people just because you can, at-will language does provide you more flexibility if someone is not working out. So, for example, let’s say you hire someone for certain skills and then decide to change the focus of the organization and you need to hire someone with a different set of skills for this new focus, then you may do so.

However, what you have to remember is that this law still does not allow you to terminate for illegal reasons. You may think that shouldn’t be an issue because you would never terminate a person for illegal reasons. However, you are still going to have to prove it wasn’t for illegal reasons if you get a claim that they were terminated because of their race, for example. This means, in the case above that you should be able to show that the person was initially hired for their specific skills, that the business focus changed, that the last person didn’t have the skills, and that the new person did have the particular skills you now needed. Hiring records will help and documentation such as performance evaluations, where you documented goals, will be helpful, in addition to documentation regarding your change of focus. You may also need to produce records that show that you hire and retain a diverse population of employees. If you, instead, terminated the employee because of their performance, even if you terminated early on and prior to doing discipline, you are still going to have to substantiate that you terminated the individual because of performance issues if the employee files a claim. You should keep a log of employee issues. This will assist you in the event of a claim, regardless of whether you terminate them during or after the introductory period.

Also know that the use of the word “probation” in a handbook has been interpreted to mean that once probation is over, that the employment is no longer “at-will,” even if you have at-will language in your handbook.

And the third item I’d like you to take away from this article is NEVER use the word “permanent” in your Employee Handbook. Nothing is ever permanent and you never want your employees thinking that they have a life-time job because of the language used in a handbook or offer letter. 

These are just a few pitfalls to watch out for in the Employee Handbook but just know that there are many more. 

At Southwestern HR Consulting (SWHRC) we have years of education and experience, in addition to numerous professional certifications, so that we are knowledgeable about the pitfalls. We don’t expect a business owner to be knowledgeable about all the nuances involved with employment compliance and the ever-changing laws. In addition, we always watch out for determinations made at the different court levels and new agency interpretations. This expertise is what SWHRC provides to you. If you want to talk to SWHRC to see how we can help, you can contact us through the SWHRC website on the link above.

Magdalena Vigil-Tullar

Written by | Magdalena Vigil-Tullar


Phone: 505-270-7494 | Email: magdalena@swhrc.com

PO Box 14274 | Albuquerque, NM 87191

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Employee Handbook Human Resources Small Business