Is Your Employee Contract "At Will"?

If your written agreement with your employee is not "at will" you could be making a big mistake.

As an increasing number of family child care providers are hiring employees to help them care for children, this issue becomes more important to understand.

When you do hire someone you want to clarify expectations and responsibilities in writing. These can include a job description, salary, benefits (if any), paid holidays or sick days (if any), and so on. Although it's not required that you put your agreement in writing, it's a good idea to avoid misunderstandings and conflicts later.

You may also want to spell out a staff evaluation process, privacy/confidentiality policy, child guidance policy, dress code, emergency procedures, and so on. There is no rule about what you must include in any written document.

Child care providers call these documents a staff handbook or employee contract.

Whatever you call it, your document should be clear that it is establishing an "at will" employment agreement, not an employer/employee contract.

What's the difference?

Employer/employee contract

An employer/employee contract generally sets out a time period of employment (six months, one year, etc) and requires you, the employer, to terminate your employee only for cause (unless you are at the end of the contract term).Most of the reasons why employers want to set up an employer/employee contract involve attracting and keeping highly paid staff, protecting inventions, and other reasons that don't apply to family child care providers.

You want to create an "at will" employment agreement.

What does "At Will" mean?

An "at will" employment agreement gives you the right to fire the employee at any time ("at will") and for any reason, as long as the reason is not illegal. An illegal reason would be if it's based on race, sex, religion, ethnic background, national origin or disability.

It would also be illegal to fire someone because they reported you for neglecting a child or violating a child care licensing rule. You could, however, fire someone who reported you if the reason was because they were not showing up for work onetime or missed many days of work.

An "at will" employment agreement also means your employee can quit at any time, without giving you any notice. You can put in your agreement that you want the employee to give you some notice, but the employee doesn't have to honor this.

So, follow these guidelines when preparing or reviewing your employee handbook:

1) Put in your handbook the following language: "This is an 'at will' employment agreement. I, as the employer may fire you for any reason at any time and you, as the employee may quit at any time."

2) Don't spell out any conditions under which an employee can be fired ("Employee may be fired under the following conditions..."). This could be interpreted as creating limitations on your ability to fire your employee.

3) Don't put a time frame in your handbook ("This agreement will be for six months/one year"). Don't create a probationary period. You want to maintain the ability to fire someone at any time.

4) Ask the employee to sign your handbook that acknowledges they are an "at will" employee. Give them a copy.

Although I strongly recommend that you do establish an "at will" agreement, you can still set up an employer/employee contract, if you want. But, by doing so you will limit your ability to fire your employee and may create other rights for your employee that you didn't anticipate.

Final Note

Contrary to what my article may imply, the vast majority of providers have never had to fire their employees! The relationship between the child care provider and her employee is almost always very positive and supportive. This remains the case with "at will" employees.

Do you have questions about the relationship with your employee?

om Copeland - www.tomcopelandblog.comImage credit: https://gusto.com/blog/people-management/firing-employee-script