How to Find Implied Contracts
Get copies of all employee handbooks and policy memos., Highlight disclaimer language., Look for promises or guarantees., Define words and terminology used to describe the employment relationship.
Step-by-Step Guide
-
Step 1: Get copies of all employee handbooks and policy memos.
To find an implied contract, all of the written documents that outline an employer's policies and procedures must be scrutinized closely.Pay close attention to the sections of the handbook that outline performance expectations and employee discipline.
These sections are most likely to create an implied contract.
For example, suppose the employee discipline section indicates that a particular procedure must be followed to discipline an employee for failing to follow the company's rules and policies, and that procedure wasn't followed when you were terminated.
You have an argument that the section created an implied contract that no one would be fired except through that procedure.
Sections on performance expectations also can create implied contracts.
For example, an employee handbook that states all employees in your position are responsible for creating at least 50 widgets a day or they will be terminated arguably creates an implied contract that you can expect continued employment as long as you create 50 widgets a day. -
Step 2: Highlight disclaimer language.
Employers often put disclaimers or other provisions in handbooks emphasizing that despite any language to the contrary, all employment is considered at-will employment.Disclaimer language doesn't necessarily negate an implied contract, but courts will take it into consideration when deciding whether your belief that you had some guarantee of continued employment was reasonable.
Whether the disclaimer controls and supersedes any language to the contrary may depend on the prominence of the disclaimer in comparison to statements implying job security.
For example, if your employee handbook refers throughout to "permanent" employees and outlines a disciplinary procedure described as the exclusive means of terminating employees, this would probably outweigh an at-will disclaimer in small print at the bottom of the last page.
You also should look for any statements that the written policies in the handbook supersede any oral statements made by managers or supervisors.
This sort of disclaimer typically prevents you from finding an implied contract if, for example, your manager tells you that based on your performance, you have a job for life. , Statements about job security, performance review procedures, and even benefits can including wording that implies continued employment is promised or guaranteed.Keep in mind that implied contracts typically are created by the employer unintentionally, but they are still just as binding as if you had signed a written contract.
Typically you won't find anything explicit in your employee handbook, since most employers know better than to guarantee employment outright.
However, statements such as "after your probationary period you will become a permanent employee" could be construed as promises.
Similarly, a statement within the description of the employer's disciplinary procedure states that employees will not be terminated without two weeks' notice could be interpreted as an implied contract requiring such notice in all termination situations – not just those occurring because of disciplinary infractions.
Promises may be implied in conditional language.
For example, a handbook provision that states "if you commit any of the following infractions you are subject to immediate termination" could be understood to mean that those infractions are the only reasons anyone would be fired without warning or opportunity to correct the problem., When employees are described using certain words such as "permanent," courts may find an implied contract.Many employers put new hires on a 90-day probationary period.
However, calling employees who have passed probation "permanent" or "long-term" can set the stage for an implied contract.
Offering permanent employment implies that as long as people continue to do their job and follow company rules and policies, they won't be fired or laid off. -
Step 3: Look for promises or guarantees.
-
Step 4: Define words and terminology used to describe the employment relationship.
Detailed Guide
To find an implied contract, all of the written documents that outline an employer's policies and procedures must be scrutinized closely.Pay close attention to the sections of the handbook that outline performance expectations and employee discipline.
These sections are most likely to create an implied contract.
For example, suppose the employee discipline section indicates that a particular procedure must be followed to discipline an employee for failing to follow the company's rules and policies, and that procedure wasn't followed when you were terminated.
You have an argument that the section created an implied contract that no one would be fired except through that procedure.
Sections on performance expectations also can create implied contracts.
For example, an employee handbook that states all employees in your position are responsible for creating at least 50 widgets a day or they will be terminated arguably creates an implied contract that you can expect continued employment as long as you create 50 widgets a day.
Employers often put disclaimers or other provisions in handbooks emphasizing that despite any language to the contrary, all employment is considered at-will employment.Disclaimer language doesn't necessarily negate an implied contract, but courts will take it into consideration when deciding whether your belief that you had some guarantee of continued employment was reasonable.
Whether the disclaimer controls and supersedes any language to the contrary may depend on the prominence of the disclaimer in comparison to statements implying job security.
For example, if your employee handbook refers throughout to "permanent" employees and outlines a disciplinary procedure described as the exclusive means of terminating employees, this would probably outweigh an at-will disclaimer in small print at the bottom of the last page.
You also should look for any statements that the written policies in the handbook supersede any oral statements made by managers or supervisors.
This sort of disclaimer typically prevents you from finding an implied contract if, for example, your manager tells you that based on your performance, you have a job for life. , Statements about job security, performance review procedures, and even benefits can including wording that implies continued employment is promised or guaranteed.Keep in mind that implied contracts typically are created by the employer unintentionally, but they are still just as binding as if you had signed a written contract.
Typically you won't find anything explicit in your employee handbook, since most employers know better than to guarantee employment outright.
However, statements such as "after your probationary period you will become a permanent employee" could be construed as promises.
Similarly, a statement within the description of the employer's disciplinary procedure states that employees will not be terminated without two weeks' notice could be interpreted as an implied contract requiring such notice in all termination situations – not just those occurring because of disciplinary infractions.
Promises may be implied in conditional language.
For example, a handbook provision that states "if you commit any of the following infractions you are subject to immediate termination" could be understood to mean that those infractions are the only reasons anyone would be fired without warning or opportunity to correct the problem., When employees are described using certain words such as "permanent," courts may find an implied contract.Many employers put new hires on a 90-day probationary period.
However, calling employees who have passed probation "permanent" or "long-term" can set the stage for an implied contract.
Offering permanent employment implies that as long as people continue to do their job and follow company rules and policies, they won't be fired or laid off.
About the Author
Barbara Stokes
Writer and educator with a focus on practical crafts knowledge.
Rate This Guide
How helpful was this guide? Click to rate: