Richard McGee


Your lawyers like at-will and your employees like for cause. Is there a middle ground between the views held by legal counsel and devoted employees?


At-will employment creates a low threshold for employees and employers to end the employment relationship.  Employees can leave you without any reason and employers can discharge employees for any reason unless it violates the law or employer policy.

For cause or just cause employment rearranges the employment relationship for the employer which now needs a reason and evidence to support the reason to terminate an employee.  In a for cause system, the reasons for termination are defined by the employer and again the termination must be consistent with the law.  Still, the employee does not need a reason to terminate the employment relationship, and unless the employee is contractually obligated to a specific term, the employee is free to walk away whether the employee has a good reason or not.  Think about it this way, the employee can always terminate the employer at-will.

As the definitions reveal, these are two policies that define the standard for employment termination. The at-will doctrine creates a low standard to termination and the just cause doctrine creates a higher standard.

Tribal employers may adopt either, both or no standard.

What about the middle ground referenced above?

Tribal employers may, through law and policy, have the best of the at-will and for cause standards. By implementing the at-will standard in the policy manual or employee handbook, the legal standard for termination is a low standard. The at-will standard is implemented as a shield against liability.

Here is the hard part…After defining the legal standard as an at-will relationship, the employer should promulgate numerous policies and practices that give employees multiple opportunities to find success in the workplace. Those policies and procedures include, but are not limited to, progressive discipline, employee advocates, meaningful due process and supervisor training. Importantly, a comprehensive approach in designing a system that does not contradict itself is critical to the success of balancing employee rights and the mitigation of employer risk.  Said another way, if you create a system that balances the employers and employees’ interests by integrating the best aspects of at-will and for cause employment, draft your policies in a consistent and coherent manner.

A typical example of consistency and coherence in drafting policy is defining a progressive discipline policy that is aligned with the at-will policy.  If the progressive discipline policy is not aligned with the at-will policy, a court may declare that the employer diluted the at-will liability shield and failed to meet the standard for terminating an employee.

Recommendation:  The balance between at-will and for cause is not knew to human resources and legal professionals since you all work to achieve a balance between employers and employees everyday.  In this specific instance, by drafting consistent and coherent policies, employers can attract and retain excellent employees while simultaneously reducing the risk of a court challenge.

May I assist you and your team with drafting policy, evaluating handbooks, training, assisting with hiring, firing and discipline; performing investigations of employee misconduct and representing the tribal employer if claims are presented?