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Express contracts: Employment Law 101: #5 of 60
December 07, 2005 by Ross Runkel at LawMemo

The simplest and most direct way to overcome the "employment at will" doctrine is to have an express contract.

• The employment at will doctrine says that the employee can quit, and the employer can fire the employee, at any time and for any reason and without any prior notice.
• This employment at will doctrine is a "default" rule of contract law. That means it applies whenever the employee and employer have not agreed on something else.
• Therefore, the solution is simple: Agree on something else.

[Employment Law 101, published Monday-Wednesday-Friday, is a series designed to give you ideas and help you spot legal issues. It is not a substitute for a good lawyer or thorough research. For the most current developments in employment law court cases, try Employment Law Memo - World's Best.]

An express contract can be in writing or it can be oral. (Of course, it is easier to prove something that is in writing.)

Here are some things an employee might want to have in an express contract:

• The employee can be fired or otherwise disciplined only for "just cause" or "reasonable cause" or some such general language.
• A more detailed list of the grounds for discipline or discharge.
• Before the employee is discharged or disciplined, the employee has to have an opportunity to explain or have some kind of hearing.
• Discipline will be "progressive." For example, there should be a warning (rather than immediate discharge) for the first offense.
• If the employee is to be laid off, there must be advance notice and severance pay.
• And surely you can think of other things.

Here are some things an employer might want to have in an express contract:

• An agreement not to compete (non-competition agreement).
• An agreement not to use the employer's trade secrets, customer lists, and so on.
• An agreement to arbitrate disputes rather than take them to court.
• And surely you can think of other things .

Coming next: Employer handbooks: Employment Law 101: #6 of 60

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