The 2 words to strike from your HR vocabulary

November 9, 2011
in Employment Law

At-will employment is the rule in most states, meaning you can terminate employees at any time and for any reason (except an unlawful one), as long as you don’t promise a job for a specific length of time.

But supervisors and HR sometimes make the mistake—often during the hiring process or after employees pass a 60-day post-hire period—of using the term “permanent” when discussing their jobs. That essentially promises the person a job for life—and it can destroy their at-will status.

Advice: Remind managers to avoid the phrase “permanent employee.” Even telling workers, “Your position is solid here as long as you do a good job,” can imply an employment contract that the court could view as binding.

Also, avoid the phrase “probationary period.” Using that traditional term to describe the initial 60- or 90-day post-hire evaluation period has created legal trouble for many employers. Courts have concluded that the existence of a probationary period implies that em­­ployees who successfully complete it can then be terminated only for cause.


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For that reason, it’s best to describe this as an “introductory,” “training” or “orientation” period.

Finally, make sure all employees sign a form acknowledging that they’ve read your at-will policy and under­­stand their employment is at-will.

Recent case: Apolonio Guerrero worked his way up from a laborer to a supervisor over 25 years at a California company. When he started, the company had no employee handbook but it eventually wrote one.

Guerrero went out on workers’ compensation for stress. After two years, he tried to return but the company replaced him.

He sued, claiming he was not an at-will employee. His proof? When he was hired, Guerrero said, he was in­­formed that he was a “permanent” em­­ployee, which he understood to mean he could never be fired except for good cause.

Result: The company fortunately won because it was able to show that Guerrero knew other employees were at-will because, as a supervisor, he had explained that fact them. He also knew about the at-will provision in the handbook. (Guerrero v. Ameripride, No. B224309, Court of Appeal of Cali­­for­­nia, 2011)

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