Employment "At Will"
The State of Washington is an "At
Will" employment state, meaning that the employee or the employer
may terminate employment at any time for any reason with or without
notice. However, the "at will" doctrine is often challenged
in the courts when a terminated employee sues the employer for wrongful
All staff employment at Seattle Pacific
University is "at will" and may be terminated by either the
employee or the University at any time with or without notice or cause.
The following guidelines are not intended
to create an express or implied contract binding the employee or employer
to an agreement of employment for a specific period of time, nor a promise
of specific treatment. None of the information contained herein
is intended to alter, modify, or amend the "at will" status
of employment. The University reserves the right to alter, amend,
or modify its personnel policies at any time as it deems necessary,
but such at-will status is not subject to change
absent a written agreement signed by the the president or a designated
Even though SPU is an "at will" employer, all disciplinary
actions must be handled with the utmost care. Supervisors must not contradict
our at will policy by creating expectations of permanent or contractual
employment. There are legal implications to be sure, but as a grace-filled
institution we must treat each other with grace and genuine respect
moving very thoughtfully and carefully into disciplinary situations
to preserve the dignity of the individual.
Action Guidelines (as
stated in the Staff Handbook)
a matter of general policy, and not as a promise of specific treatment
to any employee, the University may seek to engage in disciplinary action
with staff. This means the University may provide a period of time,
when appropriate in the University's sole discretion, for the correction
of performance or behavior.
procedures may be initiated at any time and for various reasons, as
deemed appropriate by the University. The severity of the action may
generally depend on the nature of the problem and on the employee's
past performance, and may range from verbal counseling to immediate
procedures may consist of any or all of the following steps:
with or without pay
a general policy, and not as a promise of specific treatment, disciplinary
action may be progressive in nature (e.g., a verbal warning preceding
a written warning). However, exceptions to or deviations from this general
policy may occur whenever the University (in its sole discretion) deems
appropriate. The University reserves its right to terminate any employee,
at any time, at will, with or without cause and with or without prior
Although our policy is clear that progressive discipline is only a general
policy and not a promise of specific treatment, SPU encourages supervisors
to try to use progressive discipline in any situation where it is appropriate
to restore the employee to renewed good service.
Proactively: Limiting the Need for Corrective Action
Although there will always be exceptions,
most disciplinary actions take place due to a lack of solid communication
between supervisor and employee. Situations where disciplinary action
must be applied can be very awkward and uncomfortable for both the supervisor
and the employee, not to mention the amount of time and the emotional
toll these situations require from all parties involved. The very best
way for supervisors to avoid these situations is to make smart proactive
Hire the right person. Be very thorough
in the selection process. Take your time and work with Human Resources
to insure you have an adequate pool of candidates from which to
choose a finalist. Interview carefully using behavior oriented questions
(examples can be found in the Legal Hiring Practices section pages
13-14 or by calling Human Resources). Thorough reference checking
is a must and past employers, if they are willing, can provide
valuable information. If you dont have time for reference
checking, ask Human Resources to do it for you, but do not skip
this very important step in the hiring process!
During busy periods, its often tempting to hire an "adequate"
employee thinking that you can live with or work through what you
know their shortcomings will be. But experienced supervisors know
that making an investment in finding great employees pays off when
little time is spent monitoring performance or taking disciplinary
Coaching and communication
From the employees very first
day, try to establish clear expectations both in terms of their
job description and how they are expected to work within your team.
You might go over the employees job description with them
on their first day and also create a list together of other expectations
you have for them as a member of your team. Dont be afraid
of two way communication. Asking your employee to be open with you
about how you might assist them as their supervisor in order to
be successful. When giving employees assignments, be very clear
with them about expectations and outcomes, then step out of the
way and act as a resource as they work towards accomplishing the
end product. Try to be supportive and helpful, looking for ways
to help them improve as employees. Be sure to compliment them on
good performance, but be honest when there is a need for improvement.
Good coaching and communication
helps employees know where they stand from day to day, lessening
the chance that a communication breakdown or a misunderstanding
of expectations could lead to a disciplinary situation.
Accurate Performance Evaluations and
Its very important for employees
to know ahead of time what criteria will be used to evaluate
them. Ideally, employees should be shown the evaluation tool that
will be used (maybe folding this exercise into the setting of expectations)
in the very early stages of their employment.
Employee performance evaluations can
be awkward, but you must not be afraid of communicating the
things that are good and bad about the employee's performance.
Provide clear statements regarding an employees expected
improvements. Too many supervisors get themselves and their organizations
into difficult legal situations when the annual performance evaluation
ranks a poor performing employee too highly.
When a supervisor chooses not to
confront an employee on what has become marginal or poor behavior
because the confrontation would be too uncomfortable, or the supervisor
believes the employee will improve on their own, the supervisor
creates a bigger problem for themselves, the employee and the team
in which they all work. Rarely does poor behavior improve on its
own and only detrimental effects result from putting off the confrontation.
The employee is not given a fair chance at improving and the department
and manager suffer because of it. Through constant communication,
clarity and honesty on performance evaluations, employees are given
the chance they need to improve, before disciplinary action has
to take place. In addition, inconsistency on performance evaluations
can severely hamper an employers ability to defend itself
in a lawsuit brought by the employee.
to Consider Before Taking Corrective Action
If an employee facing discipline or possibly
termination falls into one of the categories below, special caution
should be used as there are employment laws and other legal pitfalls
which in some cases, if not handled appropriately by the employer, could
provide an extra measure of protection for the employee.
Age, race, sex, and other protected classifications
(see Legal Hiring Considerations
for protected characteristics)
Has employee recently:
- Filed a workers
- Complained of safety
hazards, sexual harassment, or discrimination?
- Protested company
Is employee about to vest in retirement
plan or qualify for a significant bonus?
How long has the employee been employed?
Any pending personal problems, i.e. illness,
Any physical or mental problems that may
be interfering with job performance or that may require reasonable accommodation?
Is employee combative, unwilling to accept
blame or completely unrealistic in their perceptions?
No matter how simple the situation appears to be, its always helpful
to seek advice and counsel when working through disciplinary situations.
Consult with your supervisor or contact the Director of Human Resources
for review of both your oral and written communication plans, or general
advice on progressive discipline and/or termination.
Progressive discipline is a form of communication
to the employee and allows the employee an opportunity to improve their
performance to acceptable levels. Although the University does
reserve its right to terminate employees at will, progressive discipline
may be applied whenever appropriate.
Dont Contradict Disclaimers:
Although the University hopes to be able
to use progressive discipline whenever appropriate, its extremely
important that no supervisor contradicts our "at will" disclaimer.
Supervisors should not make any statements to employees individually
or as a group that somehow imply guaranteed employment. Here are some
examples of such statements:
- "All disciplinary issues in my
department will be handled in the same way...through progressive
- "You are a permanent employee"
(the budget is "permanent," not the person's employment).
- "the employee's contract started
on..." (the salary notification letter is not a contract of
- "Youll be around as long
as I am"
- "Dont worry about being
fired or laid off"
There may be times when progressive discipline
is deemed by the University as inappropriate and given the circumstances
the employee should be terminated immediately.
Dignity, Respect and Confidentiality
No matter how bad the situations strive
to treat employees with the utmost respect. Be clear that while you
do not condone the behavior (which cannot go unchecked) you are not
making judgments on the person. Take the approach that "you are
correcting the problem, not punishing the offender".
If a disciplinary action must be taken,
try to maintain as much privacy and confidentiality as possible. Conduct
disciplinary meetings in private and neutral settings. Avoid displaying
your feelings towards the employees behavior in front of others.
Discuss the matter with unrelated parties only on a "need to
Showing employees respect while applying disciplinary action will
not only minimize the Universitys legal risk of a wrongful termination
situation, but more importantly, it upholds our values of becoming
and remaining a "grace-filled" institution.
In most cases, oral warnings should precede
written warnings. Not only does this make logistical sense, but it
shows an employee your good faith in their ability to take your concerns
seriously and start towards improvement. An oral warning should immediately
follow the incident, dont let several days slip by... its
harder to confront at a later date and it can be perceived as an "unfair"
approach by employees.
If the behavior continues, present the
employee with a written warning. Be sure the written warning cites
your attempt to help the employee improve by first providing an oral
warning. Be clear, in writing, about the incident or the behavior
and how the behavior deviates from your expectations. Always be
clear about expectations! Indicate your intentions for future
actions using language such as "future deviations from these
expectations will result in further disciplinary action", or
you may add; "up to and including termination of employment"
(depends on how grievous the incident and where you are in the process).
You may choose to give 2 or 3 written warnings depending on the circumstances.
Have the employee sign the document indicating that they have read
and understand it.
Remember that performance evaluations
should be consistent with actual behavior. Dont get caught in
the trap of giving an acceptable performance evaluation and having
to explain later why it wasnt valid.
Whenever you start down the path of progressive
discipline, keep careful documentation of all incidents, conversations
and copies of written warnings pertaining to the situation. Be careful
to document facts about the situation (statements made, witnesses
to events, actions taken, etc.) and avoid reporting your feelings
or making too many judgments in writing. Insure that this type of
documentation be stored in an area which is inaccessible to other
employees in the department.
Please see the disciplinary
checklist reprinted with permission from the law firm Davis, Wright
and Tremaine. This may prove helpful to you if you are considering
disciplinary action or termination, or if you are actually working
through a disciplinary situation with an employee.
As an organization we strive to put people
first and therefore do what we can to always insure grace and fairness.
Within this context, there will be times when an employee must be terminated.
Because the termination will impact the employee significantly and because
of the legal complexity surrounding these issues, any termination
must first be reviewed by the Director of Human Resources and must be
approved by both the area Vice President and the President.
NEVER TERMINATE AN EMPLOYEE ON THE SPOT!
There may be a case where an employee does something wrong, and has
already been warned, and you are sure the best thing to say at that
very moment is "youre fired... clean out your desk"
or "Id like to see your letter of resignation in the morning".
Regardless, you must still review the decision with the HR Director
and gain approval from both your Vice President and the President before
communicating the final termination decision. One
option open to you while waiting for this approval is to temporarily
suspend the employee. Remember, however, that certain wage and hour
regulations restrict employers from placing exempt employees on unpaid
leave. So if you choose this option, please consult with Human Resources
Termination for cause:
The following statement in the Staff
Handbook defines termination for cause:
The termination of employment for
misconduct. The following
is an illustrative but not inclusive list of misconduct: deviation
from the Universitys Lifestyle expectations policy, violation
of the Sexual Harassment Policy; violation of the Nondiscrimination
Policy; violation of the Alcohol, Tobacco, and Drug Use Policy; violation
of the Computer Usage Policy; violation of any other Handbook policy;
and any other conduct detrimental to the University, or its reputation,
or its operations or activities. Termination for cause may also include
termination due to the employees unwillingness or inability
to adequately perform the employees job duties, or for insubordination.
Termination for cause, as defined above,
may occur at any time. In the case of termination for cause due to
job performance, normally progressive discipline, as defined and implemented
by the Disciplinary Action Policy, will have failed to bring about
improvements in performance. However, the University is not obligated
to follow any specified procedure and may terminate employment immediately
This policy provides some descriptive language which may help you
to decide on an appropriate course of action in a disciplinary situation.
Hopefully, the policy will also help employees understand what behaviors
are considered unacceptable here at SPU. Again, please proceed down
the path of disciplinary action and termination with care, gaining
the proper reviews and approvals along the way.