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At-Will vs. Just Cause

At-Will vs. Just Cause

The following excerpt, taken from our Model Handbook for Farm Employees, provides important background on “at-will employment” and its opposite, “just cause.” For a more in-depth discussion of the law regarding At Will doctrine and the AJP standards requirement of Just Cause, see this excerpt from the AJP Policy Manual, which includes significant reference to case law.

Note on employee handbooks & “employment at-will” #

University extensions and farmer organizations provide model handbooks that prioritize lawyers’ anxieties about liability over fairness to workers. Since 49 of the 50 states have “at-will” laws, the handbooks emphasize repeatedly that employers can fire people for any reason and that employees, in turn, are free to leave. This language and “employment at-will” policy are highly intimidating to employees. Without violating “at-will” law, you as an employer can commit to only firing employees for just cause. Our model handbook begins with this text:

The farm is working to ensure that the farm is a fair and supportive labor environment. The farm is covered by the state “at will” law but will not fire an employee without just and sufficient cause. Employees have the right to raise work-related concerns, negotiate terms of their employment, and lodge complaints or grievances without any employer reprisals.

The rest of our handbook covers policies and team agreements around work expectations and evaluations, discipline, harassment, etc., so that employees know what constitutes “just cause” for termination. We outline a tiered disciplinary process that does not prevent immediate firing for violence or other extreme behaviors, but still enables a process that is fair to everyone on the farm, giving employees clear and ample warning if they are violating important agreements.

Why are lawyers so concerned about repeating “at will” clauses in their handbooks? Their goal is to undermine and preempt discrimination lawsuits. If you do not include language about “at will” law and that you are specifically not entering into a contract with your employees, a court may decide that you had an “implied contract” with employees. In that case, if you fire someone before the implied period of employment is up, or if you can’t show you followed your established process for discipline and termination, a court may side with a worker who claims you ended the contract because of discrimination and you may be held liable for lost wages and damages. This is also why lawyers are very concerned that you include detailed policies against discrimination and sexual harassment in your employee handbook, as a further defense against claims of wrongful termination.

Of course you can enter into an agreement with workers and carefully follow your defined disciplinary policy and grievance process, which can back you up in case of a legal claim. This is common practice, covering slightly less than half of all employees in the US. (Also, as in our model handbook, you may optionally specify a limited trial or probationary period at the start of employment, during which time you reserve the right to dismiss an employee without going through the regular disciplinary process.) We believe it’s more fair to adopt a policy of termination only for “just cause,” backed up by clear agreements for behavior and performance and a clear disciplinary process. This strategy is more likely to have the intended effect of improving general performance, behavior, and worker engagement in the workplace. “At Will” policies sow distrust and undermine healthy working relationships.

It’s also important to note that the United States is the only wealthy, industrialized nation where employers can fire employees “at will,” and this fact is a legacy of slavery. “At Will” employment law degrades working conditions, increases the precarity of workers, and gives employers an immense power advantage over their workers. For these reasons, workers and advocates have long called for “At Will” to be replaced with “Just Cause” job protections in state and federal law (see this report by the National Employment Law Project). “Just Cause” termination has long been a primary feature of collective bargaining contracts in the US. It’s also important to note that merely citing “at will” is insufficient to preempt any liability you may have for firing someone or to prevent a judge from deciding you implied a contract with your workers. As many lawyers have noted, “at will” law is really a patchwork of overlapping regulations with many exceptions (for example, see list of exceptions in Massachusetts). The real power of “At Will” lies in employers’ intimidation of employees and the excessive cost and legal burden of mounting a lawsuit.

We at the AJP are not lawyers, and we have not written our model handbook with the primary intention of preventing lawsuits or employer liability. Our guidance does not constitute legal advice. 

If exposure to legal liability is a major concern for you, you can choose not to follow our suggestions, as long as you are not seeking Food Justice Certification. The issue as we see it is that too many employers allow vague fears about possible lawsuits to shape their actual relationships with all of their employees. It is eminently clear that this situation harms both workers and farms. We believe that perpetuating this arrangement is acting in bad faith, in a moral and ethical sense if not a legal sense.

Note also that there may be additional legal requirements for employers in your state which may dictate particular policies for your farm, beyond questions of “at will” employment. We recommend you check with local resources to make sure you’re following these kinds of regulations throughout your handbook, which are not optional. Farm Commons has compiled this state-specific data for most states. You are responsible for complying with all applicable federal, state, and local laws.

See the rest of our Model Handbook for Farm Employees.