A. Terms of Employment

In most states, in the absence of an agreement establishing a fixed duration (e.g., a two-year contract), an employment relationship is presumed to be a hiring at will, terminable at any time by either the company or the employee. While courts in most states have carved out exceptions to this general rule (e.g., allegations that the hiring constitutes an express or implied promise to terminate the employee only for cause; that the firing violates important public policy such as whistleblowing or discrimination protection; or that the firing violates an implied obligation to deal fairly and in good faith), some states still allow an employer the unfettered right to discharge an employee for a good reason, a bad reason, or no reason at all.

Companies should avoid making representations to the employee regarding job security (e.g., "No one ever gets fired around here except for a good reason."). The better way is to state orally at the hiring interview and confirm in writing in the employment application, company handbook distributed to employees, and in the employment contract signed by the employee before beginning work, that employ- ment is at will (e.g., "Either party may terminate this agreement at any time, with or without cause and with or without notice.").

Avoid hiring employees for a definite period of time (e.g., one year). By hiring someone at will, you may be able to fire without providing a legitimate reason or cause, depending upon the law in your particular state and provided there are no exceptions (such as discrimination).

When you hire an employee for a fixed term of employment, you increase his/her chances of recovering damages in a lawsuit because the burden of proof falls on the employer; the company may find itself having to demonstrate the actions which gave it a legitimate reason to fire before the expiration of the fixed term. This is often difficult to do. By hiring at will, the company can eliminate this problem.

If, however, you need a for-cause justification because you have given a worker job security, such as a definite one-year contract in writing, the following are examples of causes which justify job terminations notwithstanding such an offer:

• Habitual lateness or excessive absences;
• Failing to report absences;
• Disrespect or unprofessional conduct;
• Insubordination or disobeying company work rules, regulations and policies;
• Exceeding authority;
• Negligence or neglect of duty;
• Dishonesty or unfaithfulness, such as making secret profits, stealing, misusing trade secrets, customer lists and other confi- dential information;
• Theft of company or a co-worker's property;
• Falsifying records or information;
• Punching another employee's time card without approval from management;
• Leaving the job or company premises without prior approval from a supervisor;
• Willful refusal to follow the directions of a supervisor (unless doing so would endanger health or safety);
• Assault, unprovoked attack or threats of bodily harm against others;
• Sexually harassing or abusing others;
• Use of drugs or possession of alcoholic beverages on company premises or during company-paid time while away from the premises;
• Disclosing confidential and proprietary information to unauth- orized third parties;
• Unauthorized possession of weapons and firearms on company property;
• Intentionally making errors in work, negligently performing duties, or willfully hindering or limiting production.