Over my 22 years of both employer and employee-side employment practice, I have counseled on or evaluated on hundreds of employee terminations. When I ask, “Why do you want to terminate this employee?” more times than I can remember, the employer responds, “Because they are at-will.”

Is this a correct understanding of the “at-will” doctrine? What does “at-will employment” mean?

Before the early- to mid-19th century, the relationship between the employer and the employee was addressed under age-old principles governing the master-servant relationship. As late as 1823, it was a crime for an employee to terminate their relationship with their master prematurely. Employees who may have joked that “this job is worse than being in jail” could really test that theory.

But on the flip side, the employer was expected to retain the employee on at least a year-to-year basis.

The at-will doctrine was a byproduct of the industrial revolution in England and the United States, when manufacturing and mechanization required an adaptable and skilled workforce, and the employer-employee relationship became a simple economic relationship. In 1877, H.G. Wood authored authoritative “A Treatise On The Law Of Master And Servant.” He declared “with us the rule is inflexible, that a general or indefinite hiring is prima facie hiring at-will…”

The at-will doctrine provides that an employer may terminate an employee at any time for any reason, and the employee may leave employment with no reason.

This flexible doctrine remained the law for some time, but soon the law carved out exceptions to the at-will doctrine. The rise of organized labor led to contractual protection for employees against capricious or unjustified termination. The rise of civil-service protections provides government employees procedural and substantive protection before they may be terminated. And most recently, the law has protected employees from adverse action, including termination, because of the employee’s inclusion in classes protected by anti-discrimination laws.

In Colorado, it is illegal to terminate an individual in most cases because they engage in legal off-duty activities, engage in activities protected by law such as filing workers’ compensation claims, or in other circumstances where termination would violate public policy.

If at-will employment started out as a strong highway, it is now filled with potholes of which the employer must be aware and circumnavigate. So, how can the employer wishing to do so preserve the at-will relationship with its employees.

First, understand that while the at-will doctrine allows terminations for no cause or any legal cause, the at-will doctrine is not a reason to terminate. Numerous employers have conceded that while an employee is not performing, they have not adequately documented the performance or behavior issues.

Unfortunately, the next question is often, “Can we just call the termination a layoff and move forward?” My answer is that this is only an option if the employer wants to face a charge of discrimination when they backfill the position, especially if the employee recently engaged in protected activity or is in a protected class. An employer is better off conceding that they did not sufficiently document or address employee issues than to skirt them and invite scrutiny.

Second, an employer can arguably terminate anyone for no reason or even a bad reason so long as it is a legal, truthful and factual reason. For example, the CEO could one day decide to terminate all employees who do not like the Denver Broncos. While this may be legal, if the employee can show that the employer terminated only Bronco haters in protected statuses, the employee faces a long, rocky road answering a charge of discrimination.

Third, check handbooks and policies to see if you are promising specific procedures or processes before you terminate an employee. Ignoring your own policies raises the specter of a hidden, illegal reason for a termination.

Fourth, never investigate poor performance or behavior without giving the employee an opportunity to share their story. This avoids terminating an employee where the employer may have only part of the story. And the employee’s justification may even provide information to support the termination.

Fifth, similar to the point above, if you wish to provide your employees some protection, set up simple opportunities for the employee to be heard before termination. For example, a policy allowing an employee five days in which to state in writing why the termination is not justified provides both parties protection. Employees who are provided a say before termination are less likely to pursue legal remedies. And even if the employee takes legal action such as a charge of discrimination, the employer looks reasonable for providing the employee the opportunity to justify their behavior or performance before termination.

Finally, avoid conclusory terms and buzzwords when explaining to an employee why you are terminating them. “Not a good fit,” “not meeting standards,” or “not a team player” communicate nothing to the employee or a third party later examining the legality of a termination. What did the employee do or say that causes you to determine they have a bad attitude or are not a team player.

Terminating employees always raises the possibility of a legal challenge. Good documentation of the employee’s performance and the steps the employer took to correct poor performance or behavior are the best defense to a legal challenge to a termination.

The Employers Council makes available to its members resources on performance documentation and preparing for terminations. And Employers Council consulting and enterprise-level members may speak directly with our human resources professionals and employment attorneys at any time for advice before terminating an employee.