What is Employment at Will?

Wisconsin is an employment-at-will state that means either party can terminate the employment relationship at any time for any reason. Employment-at-will supports the concept that an employment relationship is a private matter between the employer and the employee.

If your agency, however, has entered into an employment agreement with this employee that guarantees (or implies) employment for a specified period of time, the employment-at-will is void.

While an employee can be discharged for poor job performance (or lack there of), an employee is still protected by several statutes that address issues such as age, race, and sex. None of these can be the motivating factor in the decision to terminate.

The following are steps you can take to preserve "employment-at-will" in your organization:

1. If the application is the only form your employee will sign, add a statement that employment is at will and can be terminated by either party, at anytime, with or without cause.

2. Offer letters should stay away from implying a long-term agreement is present. Word wages as hourly, if appropriate, or weekly if salaried.

3. Create and use an employee handbook. I cannot stress how important this is, regardless if you have one employee or one thousand employees. In your handbook, state the fact that employment is at will and can be terminated by either party, at any time, with or without cause. All employees should read and sign the handbook, acknowledging they read it.

4. If you require employees to sign Non-Compete Agreements, Employment Agreements, or Confidentiality Agreements, it should be specified, again, that the employment is "at will".

5. Document poor performance in the employee's file and discuss performance issues with the employee. Every conversation with the employee regarding these issues should be documented in their file. Termination for non-performance should not be a surprise.

6. Although employment is at will, again there are laws that protect employees. You cannot terminate an employee simply on the basis of religion, race, handicap, etc.

Be consistent. If you are challenged for wrongful termination, the court will look at your past firing practices. Did you provide this employee with the same warning or opportunities to improve performance that you have offered other employees? The law does not specify that an employer provide a three-step warning, for example, prior to discharge. However, if that is the usual procedure in your company, it should apply to everyone. Consistency and documentation are always key in any defense.