A Leading Perspective

Pragmatic insights for the leader in you

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Employment At Will

When my sister, Robin, was about five years old, she let my brother stick popcorn kernels up her nose.  When my mom asked Robin why she allowed this to happen, Robin said, “well, him wanted to.”

Was this a touching display of sibling love?  Not really…it was kinda stupid.

 

I thought of Robin this morning when a Manager told me he was going to “fire at will” because “he wanted to.”

Wouldn’t this be a valid exercise of his management rights?  Not really…it is kinda stupid.

 

As an HR Professional, it’s my job to talk Supervisors off the ledge or, when necessary, to stop them from launching themselves (and the reputation of the company) off the cliff.

At Will Employment, or rather a Supervisor’s assumption about the doctrine, is the reason for many “cliff” conversations.

Supervisors sometimes think At Will Employment is a “pass card” but I beg to differ.

Before I jump on my soap box, please know I’m an advocate for At Will Employment and I believe Employers need to protect their rights under this doctrine.  However, I don’t believe Employers should think of it as a “pass” for not managing performance in the first place.

 

The “legal” reasons for not simply “playing the card” when performance goes downhill include but are not limited to the following exceptions:

Public Policy Exception

This is probably the most widely recognized exception and protects employees from discharge or discipline for a reason prohibited by constitution, statute or other clear public policy.

Think of it this way.  When an employee can formulate a reasonable argument that suggests you fired him because he exercised his rights granted by legislation or regulations or because he sought protection under the same things, he will probably assert the Public Policy exception to your use of the “at will” card.

 

Implied Contract Exception

This protects the employee from discharge when an implied contract was made or assumed between an Employer and employee, even though no express, written medium regarding the employment relationship exists.

Think of it this way.  When an employee can reasonably argue she was promised continued employment because of something you said/did or didn’t say/do, she will probably assert the Implied Contract exception to your use of the “at will” card.

 

Implied Covenant of Good Faith and Fair Dealing Exception

This exception covers every aspect of an employment relationship and is interpreted to mean that decisions should meet a “good faith” standard and, if they don’t, it is assumed they were made maliciously.

Think of it this way. When it looks arbitrary, sounds arbitrary, and smells arbitrary, the employee will reasonably convince a judge it was arbitrary, thereby asserting an Implied Covenant of Good Faith and Fair Dealing exception to your use of the “at will” card.

 

Please note, these exceptions are not recognized by all of us; many states don’t recognize any of them. 


However, let’s put the legal exceptions aside; we don’t need legislation to recognize the need for leadership.

 

Supervisors must demonstrate leadership when faced with a performance management problem and should consider what role they have played in the performance failure.

  • Did they clearly communicate the roles/responsibilities to the employee?
  • Did they clearly communicate the standards expected from the employee?
  • Did they provide feedback to the employee when performance slipped?
  • Did they allow the employee to improve?
  • Did they put reasonable processes in place to allow for improvement?

 

If the Supervisor cannot answer yes to these questions, why should he fire the employee?
 
Because “him wanted to” is just plain stupid.

 

 

At Will DoctrineEmployee RelationsFairnessFire at WillGood FaithObjectivityPerformance ManagementStupiditySupervisory Mistakes

Heather Kinzie • March 17, 2012


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