“For Any Reason or for No Reason”

It’s been ten days since my previous post, but it feels a lot longer—please excuse my silence. It was caused by a combination of travel, short-deadline work, and a perfect storm of technology issues: Hacked website! Viruses! Hardware malfunction! There’s nothing like spending hours on the phone with distant technicians of varying competence to take it out of one.

To get back into the swing of things, I’ll now consider a particularly interesting usage—for any reason or for no reason.

As Used to Express At-Will Employment

I associate for any reason or for no reason primarily with language used to express the notion of at-will employment. If you’re an at-will employee, that means that your employer can fire you whenever they want. Click here for Nolo’s explanation of at-will employment.

To get a better grasp of how to articulate the notion of at-will employment in a contract, I contacted Dan Schwartz, litigator, blogger at the Connecticut Employment Law Blog, and Legal Rebel to boot.

 I first asked Dan in what circumstances you would want to specify in a contract that an employee is an at-will employee. Dan explained that even if an employee is an at-will employee, you may well want to have them enter into a contract governing matters such as confidentiality, severance, and ownership of intellectual property, and that it would make sense also to address employment status in any such contract.

But why not simply say “During the Employee’s employment by Acme, the Employee will be an at-will employee”? Dan said that at-will employement is a legal concept, and you can’t expect any given employee to know what it means. That’s why Dan supplements such language by having a contract state that the employer can terminate the employee for any reason or for no reason. (He also sees for cause or for no cause used to the same end.)

Now that I better understand the context, here’s my take on for any reason or for no reason. First off, or for no reason is illogical, in that no one acts for no reason. Every action is prompted by something—if you want true randomness, the only place you’ll find it is in quantum physics. If Acme fires Roe, it may be because Roe has proved himself to be ineffectual; because Roe behaved inappropriately at the Christmas party; because Acme’s CEO wants to hire his cousin instead; because Acme’s CEO doesn’t like Roe’s hairstyle; because Acme’s CEO is a raging misanthrope. Each of those constitutes a reason for firing Roe. Reason doesn’t imply rational thought—there are good reasons and bad reasons.

I suspect that what or any reason is intended to articulate is the notion that Acme doesn’t have to explain itself. I’d say as much.

Another issue is that you cannot in fact terminate an employee for any reason. In particular, statutes make it illegal in the U.S. to terminate an employee because of their race, religion, or gender. If I wanted to be as clear as possible in drafting my at-will language, I’d refer to such limits.

Taking into account the above points, here’s what my proposed at-will language looks like:

During the Employee’s employement with Acme, the Employee will be an at-will employee. That means that Acme may terminate the Employee at any time and for any reason, except as provided by law, and Acme will not be required to explain why it terminated the Employee.

Perhaps Dan Schwartz will let us know what he makes of this language.

As Used in Other Language of Discretion

You also see for any reason or for no reason used in other kinds of language of discretion. The following examples are from “material contracts” filed on the SEC’s EDGAR system:

Buyer shall have until February 26, 2010 to waive or elect not to waive the Remaining Due Diligence Contingencies (for any reason or for no reason), by delivery of written notice to Seller.

In the event that the Commencement shall not have occurred, the Company shall have the option to terminate this Agreement for any reason or for no reason without any liability whatsoever of any party to any other party under this Agreement.

My observations regarding for any reason or for no reason in the context of at-will employment apply equally here, but I have a bigger concern.

MSCD 2.111–126 discusses how using at its discretion as a means of giving a party unfettered discretion risks falling foul of the implied duty of good faith. (An earlier version of that discussion is contained in this December 2006 blog post.) One could argue that for any reason or for no reason articulates unfettered discretion more clearly than does at its discretion. And there’s some support for that notion. For example, in Tymshare, Inc. v. Covell, 727 F.2d 1145 (D.C. Cir. 1984), then Circuit Judge Scalia said that the phrase at its sole discretion “is not necessarily the equivalent of ‘for any reason whatsoever, no matter how arbitrary or unreasonable.'”

But I think you still face the same issue—can you contract around the implied duty of good faith? That issue doesn’t arise with at-will employment, as that’s one context where the implied duty of good faith doesn’t apply.

As Used in Conditional Clauses

The only place you find for any reason or for no reason outside of language of discretion is in conditional clauses. In this context the phrase constitutes needless elaboration—nothing is gained by articulating subsets of the circumstances in question. (See this November 2007 blog post for more on needless elaboration.)

Here’s an exmple from EDGAR:

If by the Maturity Date for any reason or for no reason the full Available Amount under this Agreement has not been purchased as provided for in Section 2 of this Agreement, …

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.