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AJP Policy Manual on At Will

AJP Policy Manual excerpt: At Will

3.2. Special Issues in Certification #

AJP has identified certain issues that are particularly complicated and/or sensitive that we feel deserve extra attention in this manual. This section contains guidance documents for certified entities to understand AJP’s position on these special issues.

3.2.1. At Will #

In 49 of the 50 states, state law declares that businesses are at-will, that is, an employer can fire an employee without cause. Lawyers recommend that businesses underline and bold face at-will doctrine in employee handbooks, although under current law there are many exceptions and limitations, such as federal anti-discrimination laws and protections for the disabled. The at-will employment doctrine (“at-will doctrine”) reflects a legal presumption that an employer enjoys absolute discretion to terminate employment without fear of liability. Termination may take place at any time and for any reason or no reason at all. Likewise, an employee may walk away from a job at any time, for any or no reason. While the at-will doctrine applies equally to both parties, its benefits flow to the party with greater negotiating power, which is usually the employer. The at-will doctrine originated in the law of master and servant in England. However, England’s at-will rule possessed a particular property that America’s version traditionally did not. England placed statutory limits upon the rule. Over the years, US law has also reduced the absolute character of at will.

Basic to social justice is the requirement that no employer ever fire a worker without just cause. Yet, the finest, most progressive and sustainable food businesses in this country (food coops, certifiers, food justice NGOs, marketing coops) almost to a one have “at-will” in their employee handbooks. Many of their managers have told us that their lawyers insist that at will protects them from frivolous law suits.

Quite a number of legal cases exist on this subject. That so many cases are out there in the first place demonstrates the risk of litigation despite at will laws. And the risk is especially high where there are discrepancies between several documents, or where an employee manual contradicts itself. Different states have different rules and tests designed to determine whether a contract was formed, either expressly or impliedly, that supersedes the at-will law. The multiplicity of cases with different conclusions indicate that the status of the at-will rule is in flux. No two courts can seem to make a decision using the same rationale. Although most supreme courts of any state usually decide a case unanimously, when it comes to employment cases, courts tend to more frequently split, with either dissents or concurrences.

Clearly, the at-will rule is not an absolute protection against lawsuits. An employer’s best chance against litigation is to develop a workplace with the atmosphere of respect. Where employer and employee both respect one another, the employees are likely to be more loyal. As a result, they are less likely to file a lawsuit. Having a clear employee manual that states that employees can be dismissed for “good cause” or other violations described in the employee manual are proactive and fair steps that ethical employers may take. Ethical employers are also well-advised to have an extended probation period at the beginning of employment to give ample opportunity to evaluate whether a new hire fits well and feels comfortable in the job. During or at the end of this probationary period, either party can end the relationship without violating the ethical requirement for just cause dismissal.

Lawyers we have consulted agree that the “at-will” doctrine does not prevent employers from waiving or renouncing at-will. An employer may form an agreement with employees, and that agreement will constitute an effective waiver of the employer’s right to terminate an employee at will. In order to be effective, such an agreement must be clear. Federal courts have held that, where there is ambiguity as to whether an employer has waived the at-will doctrine, that ambiguity will be resolved in favor of the at-will doctrine.

From Keith Talbot, a lawyer with Legal Services of New Jersey and a member of the AJP Advisory Council:

“Labor law protections provided by the National Labor Relations Act (NLRA) provide broad protections for workers acting together to complain about wages and working conditions. Although farmworkers are exempted from the federal law, state laws in states such as New Jersey and California provide similar protection. The NLRA protects workers who engage in concerted activity. This means that workers, including those not in unions, cannot be terminated for discussing with other workers problems in the workplace and attempting to address such issues with improvements. 29 U.S. C. Section 157, Sec. 7. (Employees shall have the right to …. engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection).

“The Migrant and Seasonal Agricultural Worker Protection Act (AWPA), 29 U.S.C. Section 1801, et seq. puts agricultural workers in a position that employment at will is particularly limited. The AWPA requires that farm labor contractors and agricultural employers jointly disclose in writing to migrant agricultural workers recruited for employment certain information which includes the 1) place of employment; 2)the wage rates to be paid; 3) the crops and kinds of activities on which the worker may be employed; and importantly, 4) the period of employment. (emphasis added). 29 U.S.C. Section 1821.

“The terms and conditions of employment then become part of the working arrangement for the worker. Under AWPA, at 29 U.S.C. Section 1822(c), employers and contractors cannot “without justification, violate the terms of any working arrangement made by that contractor, employer or association with any migrant agricultural worker. " There is a similar working arrangement provision for seasonal agricultural workers at 29 U.S.C. Section 1832 (c), although for seasonal workers written disclosures must be requested. The working arrangement has been explained as follows in case law:

There is no precise definition of “working arrangement” set forth in the statutes. The regulations promulgated by the Department of Labor, however, provide that an employer’s failure to comply with the arrangement is justified if due to acts of God or to “conditions beyond the control of the person or to conditions which he could not reasonably foresee.” The regulation also states that “[w]ritten agreements do not relieve any person of any responsibility that the person would otherwise have under the Act or these regulations.” 29 C.F.R. § 500.72(a), (b). Thus, an employer cannot escape liability through a specific writing contrary to the responsibilities levied upon him by the Act. Nor, however, will he be held responsible for violations which arise under unforeseen circumstances. The working arrangement, then, is the understandings of the parties, given their mutual knowledge and conduct, as to the expected terms and conditions of employment.

“AWPA’s working disclosure and working arrangement sections are intended to make clear the terms and conditions of employment like a contract, which modifies at will employment, even though the concept of the working arrangement is in fact broader than a simple contract:

Its obvious purpose is to protect workers from arbitrary and prejudicial changes in any working arrangement made between the farm labor contractor and the worker, even if not reduced to writing. The burden is on the contractor to provide a written contract, 29 U.S.C. §§ 1821(a) & (g). They cannot circumvent the requirement to follow the terms of the deal by failing to provide such a writing.

“Villalobos v. Vasquez-Campbell, 1991 WL 311902, 120 Lab.Cas. P 35,566 (W.D.Tex.,1991). As noted previously, growers are jointly responsible for complying with working arrangements to workers with contractors, even if the contractor promised terms of which the grower was unaware. Maldonado v. Lucca, 629 F. Supp. 483 (D.N.J. 1986).

“Finally, the termination of a worker, prior to the end of the period of employment, when justification is not shown, has been held to be a violation of AWPA. Colon v. Casco, Inc. 716 F. Supp. 688 (D. Mass 1989). In Colon, the workers were fired over the contravention of an optional weekend work policy. The Court held the firing improper:

Appellant [farmer] does not contest the existence of its “policy” of voluntary or optional weekend work or the general knowledge of this policy among the workers, including plaintiffs. Instead, it contends that this weekend work policy was never explicitly made a part of the “working arrangement.” It may be true that there was no written agreement handed over to the workers including this provision. However, given the undisputed mutual knowledge of and reliance upon this policy, it would not be fair or proper in consideration of the goal of protecting seasonal agricultural workers to exclude this understanding from the “working arrangement.”

With the inclusion of this term in the working arrangement, it was, as the Magistrate found, patently unjustified for appellant to terminate appellees for their failure to report to work on the weekend. Furthermore, according to undisputed evidence, the working season ran from March to November of 1985. The “period of employment” is a required term in every working arrangement. 29 U.S.C. § 1831(a)(1)(D); 29 C.F.R. § 500.76(b)(4). See Maldonado v. Lucca, 636 F.Supp. 621, 626-27 (D.N.J.1986) (noting the paucity of decisional law concerning AWPA and recognizing that the growing season may set the duration of the period of employment). With even a general understanding of optional or voluntary weekend work between the employer and employees, it was certainly unjustified for appellant to violate the term of the working arrangement regarding the period of employment by firing appellees based on their failure to work on the weekend…. In essence, appellant [farmer] maintains that even if the voluntary weekend work policy was part of the working arrangement, it was subject to immediate unilateral change at appellant’s whim. Therefore, concludes appellant, the Friday announcement of mandatory weekend work and subsequent termination of appellees was a result of appellant’s change in, not its violation of, the working arrangement. Were this position given sanction under the law, there would be no violation of any working arrangement that could not be written off by unscrupulous employers as a unilateral “change” in the arrangement. See Labor Board v. Katz, 369 U.S. 736, 743-48, 82 S.Ct. 1107, 1111-14, 8 L.Ed.2d 230 (1962) (a collective bargaining case in which the Court recognized the various ills occasioned by the employer’s unilateral actions in changing work policies).

“Colon at 693-694. AWPA and its case law are clear that growers cannot without justification fire workers in violation of the working arrangement’s period of employment.”


“AWPA requires written disclosures to workers to protect them against abusive and false and misleading recruitment. The written disclosure is in effect a contract, and is incorporated into the broader working arrangement terms. If an employer fires a worker without justification, they are depriving the worker of a promised period of employment in violation of AWPA. Thus, employment at will is limited by AWPA, in addition to other applicable limitations of anti-retaliation, anti-discrimination and labor laws. As noted in the case law, even if a written disclosure is not given, the period of employment may be implied by the length of the season. It is clear that Courts are not inclined to let employers benefit from a violation of law by the failure to do a written disclosure, including the period of employment. Given AWPA’s protection, the employer must prove a justification for termination in violation of the working arrangement.”

The Agricultural Justice Project’s Social Justice Standards, Sections 3.1.14 and 4.1.14 require that farmers and food business employers have a documented disciplinary procedure with a system of warnings before any dismissal and clear language in the employee manual that describes violations and ultimate dismal procedures. These standards are at variance to the at-will employment doctrine. Employers who wish to comply with this standard must make an unambiguous and effective commitment to respect employee rights by following their own written disciplinary and termination process. Employers must provide new employees with a written statement in the employee handbook or in a separate brochure that explains the appeals, discipline and termination process, and the possibility of appeals to the AJP conflict resolution committee. This policy statement or orientation brochure should explain that:

  1. The business is AJP Certified to use the Food Justice label

  2. The business recognizes employees’ rights to freedom of association

  3. The business retains its at-will employer status

  4. The business has a conflict resolution process for dealing with employee grievances and a tiered-disciplinary process for infractions and terminations

  5. In certifying under the Food Justice label, the business makes the commitment to adhere to its conflict resolution process. In choosing to discipline or terminate an employee without cause, the business risks losing AJP certification.

If an employer fires an employee without following the process for discipline and termination in the business’s own policy handbook, this will trigger a special review by the certifier. Any deviation from the employee manual and other employee-related policies will be considered a standards violation. The employer must notify certifier and AJP and provide justification for this action. Justifiable causes for immediate termination include danger to other employees, violence, use of drugs and similar extreme situations, which should be listed in the employee policy handbook. The Certifier and AJP will review the case and if they find that the termination was unjust, the employer will lose AJP certification.

See the full AJP Policy Manual here or Section 3.0 on Certification (including Special Topics).