Article courtesy of SBAM Approved Partner ASE
By Michael J. Burns
For many years now Michigan courts have generally upheld an employer’s at-will policies. Still, plaintiffs continue to bring expensive wrongful discharge lawsuits, generally arguing that one or more of the employer’s other policies or practices has, de facto, modified the employer’s at-will policy.
The recent case of Terry McClennon v. County of Allegan (12/12/2013) again upheld Michigan’s at-will law for employers. In this case, the plaintiff was terminated for a second sexual harassment complaint. The plaintiff brought a wrongful discharge suit alleging that the employer’s Code of Ethics statement promised “fairness” and a “fair, legal and objective process of hiring and maintaining quality personnel.” Plaintiff also argued that the employer’s Sexual Harassment Guide, which offered suggestions on how management should handle harassment claims, was not followed in his case.
The employer moved for Summary Judgment in its favor, and received it based on the lower court’s holding that these other policies made no promise to supersede the employer’s at-will policy. As in other cases, the Code of Ethics and the Sexual Harassment Guide were just that—guides—and nothing more. They guided management on how to proceed and did not, as the plaintiff alleged, modify the at-will policy by implying a just-cause policy.
The Michigan Appeals Court relied on the fact that the plaintiff-employee signed both an employment application and an acknowledgement form that clearly stated that the employee agreed to be employed at the will of the employer, and that these documents fairly stated the at-will agreement the employee had entered into and which fairly covered his employment. The Appeals Court found nothing to alter the at-will relationship. It upheld the lower court’s decision of Summary Judgment in the employer’s favor.
The significance of this case is that it case failed to break any new ground regarding Michigan law, and its outcome continued to support the state’s long-established standing as an at-will state.
Still, it should reinforce several important, if not new, takeaways for employers:
- If the employer chooses to be an at-will employer, it must ensure that its employment application and employee handbook clearly state its at-will policy.
- Its employee handbook must state that no other policy will supersede the at-will policy unless in writing and signed by the president of the organization.
- It should contain a statement that qualifies the handbook as not representing any type of contract for employment and that the policies may be edited or deleted at the employer’s discretion. Then, employers should make sure any other policies that are intended to rise to the level of a contract be signed and acknowledged separately from the employee handbook. (These separate agreements might be regarding confidentiality, intellectual property and agreements to independently arbitrate employment or other disputes.)
For more information on how to properly set up at-will and other policies in an employee handbook, ASE is once again offering its course on updating and developing employee handbooks, in Livonia on January 28, 2014. For more information on these upcoming courses, contact ASE Learning and Advancement at (248) 223-8041. Also, at your request ASE will review your existing employee handbook and offer insights into changes/modifications needed to update. Contact Michael Burns (248-223-8039) to arrange this review.