An at will employee can legally be terminated for anything except discrimination. Legally, the employer does not need to follow its own policies regarding progressive discipline or on how to terminate an employee. However, employers that do not follow their own policies in a termination will look suspicious to the employee’s attorney. The fact that policies were not followed can be used in a discrimination complaint as evidence that the employer treated this particular employee differently than other employees. Different treatment is part of the proof needed to show discrimination.
For the employer that wishes to terminate an employee, the standard advice is to follow the corporate policies to the letter, document every error that the employee has made in writing, use progressive discipline for those infractions that are considered serious or flagrant, and keep the employee informed throughout the entire process.
On the employee side, when an employee receives a written notice of discipline, a written performance improvement plan, or any other document that negatively comments on the employee’s actions or performance, the employee should consider him or herself on notice that the employer may be considering termination. The employee should react by working toward improving the actions or performance he or she has been cited for. While many times an employee feels personally wronged by such criticism, in order to keep that job, the employee must convey to the employer that he or she is ready and willing to change his or her actions.