Hiring employees has never been easy. It’s kind of like that box of chocolates Forrest Gump talked about: you can never be sure what you’re getting.
Which is a very good reason for performing background checks on prospective employees before they become part of your company.
Now, you may be thinking, “I’ll just hire on an employee-at-will basis. That way, at least I can get rid of an employee quickly if he turns out to be a bad choice. Right?”
Well . . . maybe.
We all know an employee-at-will is someone hired without any promises of staying on for a certain length of time. He can also be fired for any reason that suits the company, so long as it doesn’t violate discrimination statutes.
The other kind of employee is what’s often termed a “contract employee.” A contract employee usually has a signed written agreement, which sets forth all the terms of his employment. The length of employment and justifications for firing are almost always included in the written contract. This means he’s a tougher employee to get rid of when it becomes necessary, because you can’t just fire him whenever you want to or for any reason.
But “contract employee” is really a misnomer. That’s because all employees have some kind of contract with their employer, even if it’s only oral and the terms are very limited. In simplest terms, an employment contract is formed whenever a request for services is accepted in exchange for the promise to pay for those services. It doesn’t matter how the contract is expressed.
Back in the day, almost all employment contracts were oral, and most labor was purely employment-at-will. But that’s all changed, though many employers aren’t quite aware of this. There’s still a notion left over from the old days that if an employee was never given a formal written contract that employee is at-will and can be fired at the employer’s whim.
This is a dangerous assumption, as the line between contract employment and employment-at-will has become blurred. Courts pay attention to what was said or implied – not just the absence of a formal contract – when trying to determine if a pure employee-at-will situation really existed. Thus if the employee can prove that she was in some way promised employment for a term of months or years, she might make a case that she was not an employee-at-will. She might also convince the court that she should not have been fired without good cause. In either case, she could be awarded damages for wrongful termination.
What further complicates this problem is that employers rely more and more these days on what may be termed “ancillary” documents to establish employment promises and expectations. Letters, email, even text messages can form part of an employment contract. Courts even recognize employee manuals as expressing terms of the employment contract.
Which is not to say that an employer should avoid such documentation. Written documents are useful for clarifying terms and expectations, and even for proving an employee-at-will relationship. It only means that what goes into these documents should be carefully worded. Anything that can be interpreted as a promise that was not intended by the employer should be reworded or taken out altogether.
It also means that employers should be extremely careful about who they hire in the first place. In this brave new world of employee protections, ridding the payroll of an unsavory worker can be more complicated than just handing him his last paycheck and showing him to the door.
And that’s why you should know who you’re hiring as thoroughly as possible beforeyou put them on the payroll. Contact a reputable, full-service background investigation firm like Hire Authority at www.hireauth.com or (508) 230-5901, to find out what they can do for your peace of mind.
The foregoing should not be construed as legal advice. Employers should always consult their own legal counsel for advice on labor and employment matters.
Source: Michael Cormier, Atty.