What Does the “at Will” Presumption Mean?

Being employed at will means that the employer is able to terminate the employee for any reason, as long as it is not based on the employee being part of a protected class. Employees who in an at will setting cannot seek compensation for termination, if the termination is not based on discriminatory or other illegal retaliation, however, an employee may also leave his or her job for any reason. This open-ended form of employee-employer relationship is commonplace so it is important to understand the components.

The 90 day period

Employers will often enact a 90 day or similar probationary period where an employee may be fired without cause if he or she is not performing to the satisfaction of the employer. The probationary concept was created because union laws made it illegal to fire an employee without just cause; the 90 days allowed employers to determine whether an employee would be a good fit for the company and terminate them if necessary. Though at will employment means an employee can be fired at any time, the probationary concept stuck and is still commonly exercised. However, it has been argued that it negates the at-will concept; if worded incorrectly, employers may imply that completion of the probationary period means that an employee is no longer at will.


Violation of labor laws and/or violations of civil rights do not fall under the category of at will employment. For example, if you are terminated based on your race, this is a violation of rights and labor laws. You will be able to seek damages in court. In addition, most states recognize the concept of an “implied contract”; even if a written contract does not exist, an implied contract based on action may act as an exception to an “at will” contract. This can be a difficult area, however, because it can be difficult to prove that an implied contract existed or that its terms were violated; it will be the plaintiff’s burden to prove its existence.

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It can be hard to determine whether a termination is lawful or not based on the terms of an “at will” employment or if a violation of employee rights and/or labor laws occurred. Let us investigate for you; If you have any further questions or inquiries regarding malpractice, contact Cleary Shahi & Aicher, P.C. online or call us at (802) 775-8800. Our dedicated Vermont attorneys have years of legal experience and are ready to work with you today.

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