At Will employment

Lara · September 2003

Just wondering what your thoughts are about the "At Will" legislation

System · September 2003

We may be in agreement. What are yours?

Lara · September 2003

Thrown back at me :-)

My thoughts are that it is a crazy form of legislation. I believe that there should be just course before an employee is terminated from employment, and that any termination should be dealt with in a fair manner.

There appears to be no security on the behalf of the employee, and I find it horrific that an employer can simply terminate someones employment at will, and leave the employee without any security or financial compensation.

Are we aligned?

System · September 2003

No; indeed we aren't. Employers do not 'owe' people security or financial compensation unless they have entered a contract guaranteeing them security and compensation. They owe them compensation only for the time they have spent working at the employer's goals and after that, owe them nothing more. At will employment gives both the employer and the employee the same rights, that of terminating the relationship at any time with or without cause as long as the termination of the ralationship is not based on illegal reasons; and, those are clearly defined by law. I feel that an employer should be able to fill his positions as he wants to as long as he does so legally. And if he thinks he has filled one with a wrong fit, he should not be compelled to jump through a series of government hoops to reach his ends. An employee should not have a 'right' to a job position, once in it. After all, the job position is nothing more than a set-aside of certain funds by the employer designed to help the employer accomplish his goals, and he may try to accomplish his goals by utilizing that set-aside to pay someone's wage for a time, in furtherance of his goals. And, once the employer decides to utilize his funds in that manner, he should not be encumbered by regulations or laws, imposed from on high, that require him to either keep that person in the job slot or show some other body of people why he did not do it and let them judge his reasoning and reverse it if they choose to. The position belongs to the employer and I feel that the person filling the employer's job-slot has no bargaining right regarding it, unless given that right by contract. If I put my talents on the open market and someone buys my talent for awhile, and then decides he does not like my talent or my talent is not helping him reach his goals, he should be able to tell me to go market my talent somewhere else and he should be able to search again for talent that he thinks he will like better. I appreciate your view; but, I like mine better. x:-)

Shadowfax · September 2003

AMEN! Brother Don!

Hunter1 · September 2003

Lara: This is the way I explain it to my wife who used to hold your views: She works for a small employer who has invested his talent and money to start and grow a business. As it happens, his wife works for another employer. Let's say that the other employer falls on hard times and has to lay off the wife of my wife's employer. Why should my wife's employer have to continue paying my wife when his own wife is out of a job and can do the work my wife does? Does he 'owe' my wife a job while his own wife is out of work? No, at will employment allows him to lay off my wife and put his own to work, and why should it be any different? He's invested his money, taken the chances inherent in growing a business, etc. And the only difference between a small employer and a large one is scale, the principles are the same. We should get to employ those individuals who do the best for us.

marc · September 2003

Yes, At Will is a strong shield that is certainly under attack. The Dons “At Will” reasoning is lucid, and the story of the small businessman’s wife is a good concrete example. That being said, the other respondents have made a good case illustrating the nature of the attacks, and the core theories behind the existence of ant-discrimination laws are noble. The difficulty of navigating a way through these minefields is extreme. This is one of the reasons that many of our employers are closing plants and turning to foreign labor.

The At Will employment needs to stay strong.

Ok, off the soapbox now.

Whatever · September 2003

I'm not sure that At-will employment is a reality anymore. With all the laws that have been enacted and all the attorneys who need to make a living, there has to be some justication to prove that there was no discrimination. When I started working, an employer could just fire me--no reason was necessary. However, because some employer's were blatently discriminatory, laws were enacted that in essence watered down at-will laws.

Don D · September 2003

Whatever; where you 'are not sure' that it does exist, I 'am sure' that it does. People filing lawsuits does not diminish the reality of the At Will principle. It still exists. Unless a charge or suit alleges discimination based on one or more of the protected classes, the reality of At Will does exist. And even though a charge or suit may follow, At Will still remains, and typically will win out. In at will states, suits and EEOC charges don't advance unless some protected class violation is charged and won't win unless the employer cannot disprove that.

Whatever · September 2003

It is almost impossible not be in a protected class. As an example, if I want to fire someone because the snapping of chewing gum is annoying everyone and they won't stop, the fact that next month they would be eligible for pension, they're a member of a minority group and minority religion who suffer from a protected disease would certainly make me think twice. The fact is that you usually should have some sort of paperwork in place. I repeat my quote from a previous thread...Perceived reality has nothing to do with the facts. Terminations, even in at-will, can become expensive to defend. I believe that "frivolous" terminations are a thing of the past.

celeste · September 2003

I agree Whatever, just about anytime someone is terminated that always try to read more into it. They tend to believe the termination has a reason behind it and it is always discriminatory. I agree with everyone that at will employment is in the best interest of the company. I think the strength (at least for me) is for employees in the probation period. Whenever terminating someone, just make sure you have your ducks in a row or be prepared for litagation.

gillian2 · September 2003

"At Will" does exist, except there are so many exceptions that in reality we operate in a "just cause" environment. It isn't just discrimination that is an exception, it is the whole host of other things. People can't be fired for filing a workers comp claim, for going to jury duty, etc, etc, many times over. In order to be good citizens we put in place all sorts of processes to ensure that people are treated fairly, progressive corrective action, due process etc. etc. etc. We do all that and, guess what, in real life we operate in a just cause environment. The more rabid attorneys actually recommend getting rid of that stuff so that "at will" remains pure. The only value to "at will" is at the summary judgement phase of a lawsuit where the attorney tries to make the case that employment exists "at will" therefore the case has no merit and should be thrown out. No, it doesn't win out most often. Most often, it goes to trial where the legal tactics change and the attorney switches to "just cause" tactics - that the employer had "just cause" to dismiss the employee. There is a difference in how the various states view "at will" or more correctly, the exceptions to at will. Some states are more open to exceptions than others and Lara, we are in one of the more but not the only, employee protective state.

Steve McElfresh · September 2003

Yep to much of what has been said, even by the Dons. If you believe, and act as if, "at will" is dead, it will be for you. For the rest of us, it is just under assault and worthy of protection.

I did a quick search and noticed this article that has a good lay-person's summary of the issues. While it is written for a nurses' newsletter and uses examples from that industry, the concepts are generic.
[url]http://www.aana.com/legal/legbrfs/1989/06lb89.asp[/url]

I'm sure that there is something as good or better from M. Lee Smith. I just don't have my hands on it right now. (was that obsequious enough??)

Warm regards,

Steve Mac

Steve McElfresh, PhD
Principal & Founder
HR Futures

408.605.1870

ray a · September 2003

Obsequious and sycophantic. /:)

System · September 2003

"At will" has always existed. Protection comes from legislation to assure fairness for certain reasons. In this state, smokers are not protected and we can refuse to hire smokers. If they start smoking, we can decide to fire them if we want, soley for that reason. But there is danger in firing people if they fit into one of those classes that are protected.

An employee has the right to end the work relationship any time they want for any reason they want - and their reason can be discriminatory. They can quit if they don't feel like working for someone in a protected class. The employer can end the relationship as well without a reason as long as that reason doesn't violate an employee's rights by law.

I like it this way. It's fffffffair! (That's the 4-letter "F" word of HR.)

"Sam"

WOCO Frank · September 2003

I can't imagine how hard it would be to do my job if I felt the "at-will" doctrine was dead. It's one of the few Aces we still hold... disregard it at your own peril.

Hunter1 · September 2003

Sam and Frank make excellent points. Why is it that an employee can come to work, have huge amounts spent on them on training, and be free to leave employment to 'better themselves' with training/experience provided by an employer, or even for a discriminatory reason, but an employer must have just cause?

"Disregard it at your own peril", is excellent advice concerning at will employment!

Steve McElfresh · September 2003

Yeah, if only it weren't for that pesky 13th Amendment, we could go back to the good 'ol days of indentured servitude. Now there's an employment contract!

;-}

Regards,

Steve Mac

Steve McElfresh, PhD
Principal
HR Futures
408.605.1870

System · September 2003

What are you implying Steven? Don't you realize all HR professionals are indentured?

Steve McElfresh · September 2003

Don2:

Hey fella, who are you accusing of having dentures!!??

Steve Mac

Steve McElfresh, PhD
Principal & Founder
HR Futures
408.605.1870

Steve McElfresh · September 2003

Lara,

It occurs to me that despite all our yakking, I for one don't have any idea what you were referring to when you asked at the start of this thread about "the At Will legislation". At-will is fundamental and long-established public policy in almost all states (all but Montana, if memory serves).

But perhaps there is more specific, pending legislation in this area? What might that be? Or, perhaps, you are simply talking about the established public policy of at will employment.

Do let us know if there is something more specific/pending on your mind, as I am sure any three of us could gin up eight or ten more opinions for you.

Steve Mac

Steve McElfresh, PhD
Principal
HR Futures
408.605.1870

gillian2 · September 2003

Deborah Ballam, a law professor at Ohio State wrote an article some time back called "The Demise of Employment at Will". It is her position that "at will" will die of its own weight, weight that is gained by ever increasing exceptions - they don't decrease.

System · September 2003

>Deborah Ballam, a law professor at Ohio State wrote an article some
>time back called "The Demise of Employment at Will". It is her
>position that "at will" will die of its own weight, weight that is
>gained by ever increasing exceptions - they don't decrease.

There have been multiple parallel articles regarding the doctrine of affirmative action and the Glass-Ceiling-Myth, both of which are Miz Ballam's chief mantras. The legal community seems to have been waiting with baited breath, some 5 or so years, since she predicted the impending demise of At Will, for it to crumble around us. The Glass Ceiling 'died of it's own weight' while she was busy predicting At Will's death under it's own weight. I have read some of her stuff in The American Business Law Journal, including her "Jurisprudential Theories in Counterpoint: Commercial Impracticability Through A Legal Kaleidoscope", which sounds to have been written instead, on a balmy Autumn evening, by John Lennon. Most, if not all, of her predictions have never arrived and some have said they are hollow writings which serve only herelf and a handful of ultra left-wing liberal buds. She also spent several years helping folks at Ohio State think women on campus were oppressed, almost single handedly forming the 'Women's Grass Roots Network' there, convincing other tenured professors and the liberal segment of the student body that they needed to reduce feelings of isolation among and between all women on campus. Hell, all they needed to do was loosen up abit, have a rum and mosey on over to the Ohio State football game.

System · September 2003

Legally, people are not oppressed anymore. Women haven't be oppressed since the bra-burning demonstrations in the 60's. I have an old newspaper from 1963 when JFK was assassinated. I looked in the classified only to find a column for "Help Wanted - Male", and "Help Wanted - Female." If individuals feel they're oppressed, it's because they don't know they don't have to be.

In reality, their are still oppressors out there. That's why there is "us," the employee advocate. Employees think "advocacy" means we should run up to the CEO and demand more money, benefits, and holidays. Stay away from that or they'll think you're their union rep.

Our role as advocates is to make sure people are being treated fairly with regards to application of discipline and employment decisions. Sometimes you get managers who are clueless.

OK - done rambling.

clackey · September 2003

Hey guys, we should consider ourselves lucky that we have "at will employment". I practice HR in both sides of the border ( Mexico and USA). The Mexican Labor Laws are extremelly protective of the employee leaving the employer with nothing to defend himself. In Mexico, if you fire an employee (or terminate his/her employment) for ANY REASON, you must pay severance which includes 3 months of salary pay, 12 days for every year they worked, unused vacation pay plus a 25% of vacation premium ,christmas bonus (7 mandatory days per year at least) and employee profit sharing (5% of your gross profit for that fiscal year). Forget about justifying the legal discharge at court, no matter what your reasons might be, you must pay the employee the severance pay described above. I see it all the time, all US companies go to Mexico because of lower productions costs but once they need to terminate somebody, they realized their savings are gone in the severance pays.
I trutly appreciate "At-Will employment" here, in the land of opportunities and fairness!

scottorr · September 2003

I have read through all of the posts. I belive that "at will" still exists on paper but I don't think there is one of us who would not document reasons for termination which according to "at will", would not be required. I think it is still a good concept but do not think it has the power it used to. My only issue with "at will" is that when an ee starts, we tell them they will earn two weeks of vacation and then after they start we give them a policy that say in order to receive your two weeks of vacation upon resignation, you will be required to give a two week notice. That to me crosses a fuzzy line. If someone has earn the time while employed, it is their time, not the companies any more.

gillian2 · September 2003

"At will" and "just cause" are both valid concepts, "at will" being most useful for those organizations that can't control stupiditities. If you need it, you need it.

PAhr · September 2003

I'm all for "at will" but I'm also for progressive discipline. "At will" gives you the opportunity to terminate if you recognize that a situation just isn't working out or that one act of misconduct constitutes immediate discharge. But progressive discipline gives the employee the impression that they have a say in regards to their employment and makes them feel as if they don't work for a dictator. The way I always put it, we make the rules, we enforce the rules but you ultimately decide whether or not to abide by the rules. If you choose to break the rules, you are the one choosing to terminate the employment relationship. The progressive discipline policy also allows problem employees to recognize mistakes and work toward becoming a valued employee. And having the policy helps keep our UC claims down as well. I don't think progressive discipline should be legislated but it does have it's advantages to both employer and employee.

WOCO Frank · September 2003

I believe strongly in At Will, but of course I still document the reasons. I don't do it because I'm worried about the legality of the termination as much as I do it for these reasons:

1. Unemployment determinations
2. Because every employee has the right to know exactly why they were let go
3. Because my replacement (or my future assistant, or even my doddering future self) needs to know the exact cause for termination, to determine rehire status if nothing else.

To suggest that if we document cause for termination, then we don't really believe in At Will, is a reach.

mwild31 · September 2003

I believe in At Will & follow it every single day. A lot of people continue to think of At Will only in terms of what the employer can do to the employee & not what it also allows the employee to do - that is, leave "At Will". It's a mutual relationship. Employee agrees to work productively & employer agrees to pay employee - if that relationship breaks, for either party, it's time to go.

marc · September 2003

WOCO and MWild make good arguements late into the evening. Go home.

At Will employment

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