As promised here is Part 2 of the Guest Blog entry from Julie Keeter, PHR.

In Terminations in the USA: Part 1 we provided two of four areas to consider when avoiding wrongful terminations.  In Part 2 we will touch on the other two areas – again please note, your own unique situation cannot be answered by this brief summary so PLEASE consult your attorney before making employment decisions based on this information…Thank you.

The other two areas of consideration are:

 1) Implied contract
 2) Covenant of good faith

Implied contract is another exclusion, this occurs when an employer makes oral or written statements to employees regarding job security, procedures that will be followed when adverse employment actions are taken or other employment matters. These statements (do not have to be written down) may create a contract for employment. This exception is recognized in most states, although the requirements for creating an implied contract vary. 

Here are two examples of implied contracts 1) handbook provisions which state that employees will be disciplined or terminated only for “just cause” or under other specified circumstances, or provisions which indicate that an employer will follow specific procedures before disciplining or terminating an employee and 2) a hiring official’s oral representations to employees, such as saying that employment will continue as long as the employee’s performance is adequate, also may create an implied contract that would limit termination.

To avoid creating implied contracts inadvertently within an employee handbook be sure to have your employee sign a clear and unambiguous disclaimer stating that its policies and guidelines do not create contractual rights. They may also wish to reaffirm that employment is “at will” and may be terminated at any time.

Finally ‘good faith and fair dealing’ is a new provision thankfully not adopted by many states but not surprisingly is relevant in California. “The exception for a covenant of good faith and fair dealing represents the most significant departure from the traditional employment-at-will doctrine. Rather than narrowly prohibiting terminations based on statute, public policy, or an implied contract, this exception—at its broadest—reads a covenant of good faith and fair dealing into every employment relationship” (JJ Keller Inc., Prospera, 2010).

In summary, do not be seduced by the rosy color of a world where you are protected by a doctrine of ‘At-Will’ employment. There is no protection there, you must look at the big-picture and do your research prior to making employment decisions. I recommend becoming familiar with your States’ regulatory agency and statutes and if this seems overwhelming (because it is) hire an employment attorney to help you.