This article appeared as "At-Will Employment" in the Spring 2024 issue of Independent School.
In the past decade, there’s been a major shift at independent schools toward at-will employment—meaning that either the employee or the employer can end the employment at any time and for any reason not otherwise prohibited by law (e.g., on the basis of discrimination). At-will employment seems to provide flexibility for all involved, generally decreases administrative burden, and recognizes the challenges of one-sided enforcement. This doesn’t mean that independent schools are becoming more flippant about their hiring and firing, however. The hope, as with any employment relationship, is that it lasts—at least for the academic year.
To preserve the at-will nature of employment, documentation should be reviewed carefully and regularly. Along with the material terms of employment, such as pay details, start date, and location, schools should include an explicit at-will employment statement, as well as a description of how, if at all, the at-will status may be modified. It’s also wise to include a reference to any conditions of the offer (e.g., successful completion of background checks) and related documents (e.g., confidentiality), a deadline to accept the offer, and the signature of both parties.
It’s acceptable to issue a verbal offer to a prospective employee and then follow up in writing to confirm the understanding, which underscores the importance of an integration clause, clarifying that the offer letter supersedes or integrates any prior discussions.
Some employers will include in accompanying documents more detailed terms related to confidentiality, intellectual property ownership, and dispute resolution. Regardless, it’s important for schools to avoid the following:
- Any description of the anticipated time period for employment, which could be interpreted as a promise of employment for a term.
- References to cause/not-for-cause termination or procedures for termination.
- Promises or future bonuses, raises, or other terms that cannot be guaranteed.
Following the initial hire, schools/employers will either issue an annual letter confirming employment or issue a written document if material terms (e.g., salary) have changed.
Finally, beware of any handbook terms or other documents inadvertently negating at-will employment. Keep a signed copy of offer and update letters in employees’ personnel files. As with other employment documents, conduct a periodic review with an employment attorney to ensure that the language is legally sound, complies with good and modern practice, and does not inadvertently create any contractual obligations.
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