Posted on Thu, Feb 11, 2010 @ 09:07 AM
In our last blog posting we discussed just what exactly employment at will means to your company. Now that you are aware of the terms of at will employment, we will discuss why businesses have it and follow it, and how to manage the terms and provisions of at will employment in your organization.
So Why Have At Will Employment at All?
Although exceptions to the rules of Employment At Will exist, it is nonetheless a very important part of the American employee-employer relationship. It provides a certain amount of structure or an organization, which makes it clear that there is no master/servant relationship and the days of indentured servitude are long behind us. It creates a respect for the freedom of the worker and the power of the employer and the balance that must be maintained so that each can be of service and mutual benefit to the other.
The balance is the key.
"Of all the things I've done, the most vital is coordinating those who work with me and aiming their efforts at a certain goal." - Walt Disney
Employers must always respect this power from the aspect of employee morale: If you as an employer are perceived as taking for granted and treating your employees as disposable assets at the will of your whims, your employees will turn on you. And when they turn on you, they may very well turn to unions, government agencies, or litigation attorneys for protection of their rights.
A successful organization should see its employees as a vital asset and treat them as such. It should not operate with an employer vs. employee mindset. If this is the case, people will only work hard enough not to get fired, and I don't have to tell you that's not very good for productivity.
"Most people work just hard enough not to get fired and get paid just enough money not to quit." - George Carlin
Employees must always respect this freedom from the aspect of job security: If you as an employee are perceived as taking for granted the benefits and stability provided to you and treat your employer as a machine held in bondage by its need for your skills and assets regardless of your behavior, your employer will turn on you. And when it turns on you, it will turn you out, and turn to the next person in line who needs a job.
What have we learned from all of this? Well, if you take nothing else away from this blog series, take at least this point. Even though Employment At Will does exist and you can technically terminate "at will", it is in the best interest of employers and employees to operate under an agreement of good faith and fair dealing. If you can't imagine yourself sitting in front of jury using "at will" as a defense, you had better have good cause for termination of the relationship. That one tip could save you a lot of hassle and a lot of money.
Now what? Well we suggest you review the previous two articles to be sure you're up to speed. Then if you have other questions, we suggest that you Contact Us.
Employment At Will Part 1
Employment At Will Part 2
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Posted on Mon, Nov 23, 2009 @ 10:52 AM
In the case of Inman v. Klockner Pentaplast of America Inc. (KPA), Dean Inman, a former vice president, alleged he was fired while the company was attempting to create a younger image. The district court originally determined that there was insufficient evidence of age discrimination. On October 22, 2009, however, the 4th Circuit Court of Appeals reversed the district court’s initial ruling after oral arguments were presented and the AARP filed a brief in support of Mr. Inman.
The crucial piece of evidence that overturned the decision? A napkin.
I don’t know if it was a cocktail napkin or one fit for a full meal but it was certainly large enough to do a lot of damage for this company. Several months before the plaintiff was terminated, the president of KPA met with a consultant hired to recommend suggestions to overhaul the company’s image and operations. During that meeting, the president jotted down notes on the napkin. Among those notes was the word “young”. That one little word on that one little napkin was enough to bring this case back to court.
The reason is this: Under the Age Discrimination in Employment Act, the employee must present evidence that the employer’s stated reason for the termination was a pretext for discrimination. The emergence of this napkin provides such evidence, according to the plaintiff, in that the company wanted a younger staff in order to promote a younger, more energetic image. Burden of proof is now on the company to prove otherwise.
Regardless of anything else said in that meeting, that one adjective can be enough to bring the company to its knees if a jury determines that the president of the company launched an initiative to revitalize the company with a younger image following the meeting with the consultant. Add to this the fact that the plaintiff claims the president told him when he was fired that the company needed a “more energetic person” in order to have the “appearance of a revitalized company” rather than “the same old things” currently in place.
So what’s a company to do? Realistically the human resources department can’t censor everything that comes out of managers’ mouths. We don’t know if the president of the company made these statements or not, but I’m sure we’ve all worked with managers who would. The trick is to get managers to realize that everything they say is said on behalf of the company, and the company is held accountable to their words. Nothing is said lightly, no matter how lightly it is said. And nothing is off the record.
Managers also need to be taught to be judicious when they speak with employees, and about employees. If they could not defend their words to a jury, they are better off not spoken. And put absolutely nothing in writing that cannot be defended as accurate and true. As the case above shows, the devil is in the details, and the devil has a law degree. Choose your words wisely.
Submitted by: Paula Agee, SPHR; Senior Consultant with IntegrityHR, Inc.
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Help Integrity HR Spread the Word!
Use our blog as a resource - http://integrityhr.com/blog
Stay on top of of your organization by subscribing to our blog via email or RSS to the left. If you would like to Contact Us about any of the concepts in the above blog posting please call 502.753.0970.
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