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Old 09-22-2012, 12:16 PM
 
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I have always been curious about the differences between an employee who is at will or has an employment contract. I don't know what to ask but i will make assumptions and other posters can critique to see if i am accurate

assuming 2 employees have the same degree(tho one with the contract is a manager and the other at will employee technically isn't a "manager" per se but has equal powers in other areas due to the degree), this is what I have come up with:

the at will employee is hired with the understanding that employment is at will and he/she can be fired with or without cause and is free to leave employment at any time

the contracted employee is hired and signed on by a board of directors. the contracted employee cannot be fired unless he violates the terms of the contract and if he/she is fired and did not violate the terms of the contract he/she can sue in court. the at will employee cannot sue

a salary raise with an at will employee is verbal. a salary raise with a contracted employee depends on what is in the contract

a contracted employee is legally "tethered" to the company. the at will employee is not

a contracted employee earns more money than an at will employee

if a boss wants to fire a contracted employee they can't just ask them to leave like they can with an at will employee. they must get a vote of the board to terminate the contract of the employee

so what do you think?
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Old 09-22-2012, 04:24 PM
 
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I'm an employee with an employment contract. This is how it applies to me.

Quote:
Originally Posted by rlrl View Post
the at will employee is hired with the understanding that employment is at will and he/she can be fired with or without cause and is free to leave employment at any time

the contracted employee is hired and signed on by a board of directors. the contracted employee cannot be fired unless he violates the terms of the contract and if he/she is fired and did not violate the terms of the contract he/she can sue in court. the at will employee cannot sue
Thats pretty much the basics, with a contract, the terms and conditions of various aspects of your employment with the componay is in writing and constiitutes a binding legal contract that is enforceable in court by both sides.

Quote:
Originally Posted by rlrl View Post
a contracted employee is legally "tethered" to the company. the at will employee is not
Correct, both sides have agreed to a specific term (lenght of employment). The employee is expected to fullfill the lengh of contract as is the company.

Quote:
Originally Posted by rlrl View Post
a contracted employee earns more money than an at will employee
Thats a big misconception. They may not earn any more and may even earn less than a at will employee. Compensation isn;t always the basis of the contract, its the commitment and terms. Pay is negotiated as an item to be included in the contract but the presence of the contract doesn;t automatically mean more pay.

Quote:
Originally Posted by rlrl View Post
if a boss wants to fire a contracted employee they can't just ask them to leave like they can with an at will employee. they must get a vote of the board to terminate the contract of the employee
The terms of termination will also be spelled out in the contract. Not everything will requires some higher authority to terminate if its permitted in the contract. Basically the conditions for termination are individual based on the wording of the contract. As a general rule, usually only very serious things (criminal actions, absolute disrespect etc) can result in lower authority terminations. Most performance issues will be spelled out with safety nets for both employee and employer.

In a nut shell, an employment contract is nothiong but a meeting of the minds as far as an employee's employment terms & conditions are concerned and a legal binding contract is written to ensure the terms and conditions are followed. Otherwise, whats in the contract could include many of the same at-will provisions if thats what both agree to.
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Old 09-22-2012, 04:45 PM
 
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got it. but the thing is, as far as compensation goes, ive always assumed that an employer would pay a contracted employee more because the employer would be paying the employee an amount at or near the top of what the field pays commensurate with their experience and qualifications, thus locking the employee in and the employer would figure "why would they leave to go anywhere else when they are making top dollar"??

in other words the salary range for an employee with x quals and experience is somewhere between $50-100,000. the employer offers the employer a salary at the upper end of that range (say $80 or 90, 000) and signs the employee on, and figures "it pays to lock them in where else they gonna go that pays more??!!"

in other words it would stop the concern that the employee might leave

well this is how i see it anyway

what do you think?
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Old 09-22-2012, 05:05 PM
 
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I think the OP is confusing a 1099 contractor who tends to be paid a higher wage (since they must pay for all of their own taxes, supplies, expenses) with a W-2 employee who simply signs a binding employment contract that breaks down the rules & regulations of the company along with their agreed upon wage and benefits.

That said, I'm pretty sure signing said contract really doesn't waive at-will employment. It's usually included in the contract that the employer can lay you off at any time for whatever non-protected reason.
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Old 09-22-2012, 05:25 PM
 
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no, not the 1099, i mean the difference between the at will and contracted employees(as you refer to in the second paragraph). when our director was reviewing the employee manual and was talking about how the at will system works, he said "unless you have a contract with the board you are at will"
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Old 09-22-2012, 05:29 PM
 
Location: Las Vegas, NV
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In most states (and maybe all states) in which at-will employment is recognized, the employment relationship is presumed to be at-will unless something in the nature of a promise has changed the relationship. Most states will consider at-will employment to be altered by: 1) a promise made and exchanged with consideration (which results in a contract being formed); or 2) a clear and specific promise of employment for a limited duration relied upon by the employee to the employee's detriment (so that an employer is "estopped" from firing the employee without good cause); or 3) a promise not to terminate the employee unless certain conditions have been satisfied (an example of which would be a promise of due process before termination). The third kind of promise results in what is usually recognized as a quasi-contract.

Employment at-will means one thing, and only one thing. As OP notes, an at-will employment relationship can be terminated (by either the employee or the employer) at any time for any reason not contrary to law. (Examples of reasons contrary to law are race discrimination or retaliation for complaining about sexual harassment). An employee under contract is different than an employee at-will because the contract is an agreement to provide employment for a SPECIFIC, LIMITED DURATION. (For example, a promise to employ a person for one year creates an employment contract, but a promise to employ someone "for life" probably does not change the at-will status).

The employment contract can only be terminated before the specified duration if the party terminating the relationship has good cause to do so. Typically, the contract will include terms that define what "good cause" is. But if the contract does not define "good cause" then most states have existing law that will provide the definition.

Other terms of employment such as compensation can be agreed upon between an employee and an employer without regard to whether the employment is at-will. Regardless of the promised terms of employment, if the employer has not made a promise of specific, limited duration, the employment is at-will. So all of the other issues OP identifies can be part of the employment agreement without affecting whether the employment is at-will.
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Old 09-22-2012, 09:58 PM
 
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Quote:
Originally Posted by rlrl View Post
got it. but the thing is, as far as compensation goes, ive always assumed that an employer would pay a contracted employee more because the employer would be paying the employee an amount at or near the top of what the field pays commensurate with their experience and qualifications, thus locking the employee in and the employer would figure "why would they leave to go anywhere else when they are making top dollar"??

in other words the salary range for an employee with x quals and experience is somewhere between $50-100,000. the employer offers the employer a salary at the upper end of that range (say $80 or 90, 000) and signs the employee on, and figures "it pays to lock them in where else they gonna go that pays more??!!"

in other words it would stop the concern that the employee might leave

well this is how i see it anyway

what do you think?
No, the employment contract is just a binding contracts that spells out certain conditions both parties want in writing. Imagine it a legal binding version of the Offer Letter, Job Description, Compensation Plan and Employee Handbook. There is no basis that an emplyment with an Emplyment Contract would or wouldn;t be paid more or less, thats negotiated and once negotiated would be included in most employee contracts.

Quote:
Originally Posted by 313Weather View Post
That said, I'm pretty sure signing said contract really doesn't waive at-will employment. It's usually included in the contract that the employer can lay you off at any time for whatever non-protected reason.
Actually, most employment contracts list specific actions that can result in termination without any recourse (usualy serious misconduct issues), but other than that, the contract would spell out specific steps and requirments in order for the employer to terminate the contact. I can;t see how any lawyer would allow their client to sign a employment contract that has an at-will provision as it defeats the primary purpose of that contract. With that said, they usually call for certain steps to be followed to terminate the contract for performance issues and certain compensation requirments if they decide to terminate the contract for lack of work. There are also provisions as to the employees obligation to the company should they breech the contact.
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Old 09-22-2012, 10:25 PM
 
Location: Las Vegas, NV
548 posts, read 1,002,010 times
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Quote:
Originally Posted by PacificFlights View Post
No, the employment contract is just a binding contracts that spells out certain conditions both parties want in writing. Imagine it a legal binding version of the Offer Letter, Job Description, Compensation Plan and Employee Handbook. There is no basis that an emplyment with an Emplyment Contract would or wouldn;t be paid more or less, thats negotiated and once negotiated would be included in most employee contracts.


Actually, most employment contracts list specific actions that can result in termination without any recourse (usualy serious misconduct issues), but other than that, the contract would spell out specific steps and requirments in order for the employer to terminate the contact. I can;t see how any lawyer would allow their client to sign a employment contract that has an at-will provision as it defeats the primary purpose of that contract. With that said, they usually call for certain steps to be followed to terminate the contract for performance issues and certain compensation requirments if they decide to terminate the contract for lack of work. There are also provisions as to the employees obligation to the company should they breech the contact.
Actually, contracts with at-will employment provisions are common. The most common example is when an employer wants a new-hire to enter into a non-competition agreement. In those cases, a contract very often will include other terms of employment such as compensation and duties. Another common issue that arises is when the employer and employee agree to a complex or lucrative severance plan. Usually, the employer will only want to make the severance payment if the employment separation happens without any fault of the employee. So the employer requires a contract that protects the employer against having to pay severance if the employee is terminated for cause and protects the employer's right to terminate the employment without cause. These are a couple of the situations where employees can, do, and often should sign an employment contract that does not change the at-will employment relationship.
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Old 12-15-2012, 06:51 PM
 
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I have a question, i was working at an at will employment facility. I never signed anything acknowledging that i was informed that i was an at will employee. Yet i was a manager. I was "let go " but the owners knowing i had consulting experience and background, i believe they used me to just fix the restaurant and then once its running smooth the fired me. I kinda believe this was a mis representation of the first employment negotiation.
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Old 12-15-2012, 07:39 PM
 
9,313 posts, read 13,844,848 times
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Quote:
Originally Posted by Jsschef View Post
I have a question, i was working at an at will employment facility. I never signed anything acknowledging that i was informed that i was an at will employee. Yet i was a manager. I was "let go " but the owners knowing i had consulting experience and background, i believe they used me to just fix the restaurant and then once its running smooth the fired me. I kinda believe this was a mis representation of the first employment negotiation.
I am not a lawyer, but as I understand it, employment contracts are "at will" by default in every state. That is, unless your employment is stated as being for a specific term, it is "at will". Most companies will explicitly state that employment is "at will", but that's just CYA.

There's no conflict between being "at will" and having an employment contract; there's always an employment contract even if it's as simple as "you do the work and I pay you". A formal written contract can still be (and usually is) for "at will" employment. The term just means they can terminate your employment without cause at any time, and you can quit at any time.

As 313 points out, being a contractor whose pay is reported on a 1099 is different; it's not employment and someone whose compensation is through 1099 contracting jobs is self-employed.

Unfortunately, this means if they bring you in to fix problems and then dismiss you once things are running smoothly, they're perfectly within their rights to do so even if they didn't tell you that's what they were doing.
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