Pub. 1 2011-2012 Issue 2

13 NT? • An employer can make a prac- tice of only firing employees for cause. • Even though there is no ex- press, written contract be- tween the employer and an individual employee, the em- ployer’s handbooks, policies, practices or other written assurances may assert that specific termination procedures will be followed. Employers can protect themselves by using a clear and unambigu- ous disclaimer on written materials stating that its policies and procedures do not create contractual rights, and that employ- ment is at will. Employers can also reserve the right to modify policies and procedures at any time. Another exception to the at-will employment presumption is an employer’s obligation to observe the implied covenant of good faith and fair dealing. A claimant will generally need to show that the employer acted in bad faith or with malice. In addition to the common-law exceptions outlined above, there are also several statutory exceptions to the at-will employment doctrine. Federal and state discrimination statutes prohibit em- ployers from basing employment decisions on an employee’s race, color, religion, sex, national origin, age, disability, or veteran status. It is important to recognize that discrimination statutes shield members of protected classes only from adverse employ- ment actions made because of their membership in a protected class. In other words, an em- ployer may fire an employee for inadequate job performance, but not because of a disability. Retaliation is another statute- based exception to the at-will presumption. Federal and/or state laws prohibit employers from firing employees in retaliation for engaging in legally proper, necessary, or desirable activities. Examples of protected activi- ties include: • Claiming minimum wage or overtime compensation • Engaging in union activities • Opposing illegal discriminatory practices • Filing for workers’ compensation • Whistleblowing • Employment Policies and Practices Employers who intend to rely on the at-will presumption should review their hiring practices, termination procedures, and employ- ment handbooks regularly with a lawyer who can provide good legal counsel. This article is intended to be a general overview. It is not an exhaustive discussion of the subject matter and is not intended as legal advice. Since every case is different, the information provided herein may not apply to a particular set of facts. At-will employment is recognition that both the employer and the employee need the freedom to part ways, at their discretion. ” SALT (801) 532-3333 LAKE CITY, UT T T LAS VEGAS, N PART OF THE EMPLOYMENT & LABOR PRACTICE GROUP AT VANCOTT Florence M. Vincent Mark A. Wagner Mark A. Flores Labor & Employment Matters, Employee Handbooks, Policies. Because It Matters! ®